9911796707
TMI Blog2013 (8) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006-07 and similarly for assessment year 2007-08. Accordingly, he treated the gain on account of sale of shares as business income. In appeal, learned CIT(A) has confirmed the action of the AO. 5. After considering the order of the AO and CIT(A), we find that the assessee deserves to succeed on this issue for both of the years. On similar facts in the case of Tikuchand D. Jogani, decided in ITA No.2285/M/2010 of even dated, the issue has been decided in favour of the assessee. The following findings of the Tribunal in the aforesaid case have been reproduced hereunder :- "7. After considering the order of AO, CIT(A) and the submission of the assessee, we find that the assessee deserves to succeed on the issue involved. It is seen that the assessee has shown all the purchases under the investment portfolio. It is further seen that the long term capital gain shown by the assessee has been accepted by the AO himself. Under the provision of law, it is clearly provided that if the holding of share is more than one year then the gain on account of sale of shares has to be treated as long term capital gain and if holding period of shares are less than one year then the gain on account o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her a particular ho/ding of shares is by way of in vestment or forms part of the stock-in-trade is a matter which is within the knowledge of the assessee who holds the shares and he should, in normal circumstances, be in a position to produce evidence from his records as to whether he has. maintained any distinct/on between those shares which are his stock-in-trade and those which are held by way of in vestment." 12.1 In the case of CIT, Bombay vs H Holck Larsen (160-ITR-67), the order to determine whether one was a dealer in shares or an investor, the question was not whether the transaction of buying and selling the shares lacks the element of trading, but whether the later stages of the whole operation show that the first step - the purchase of the shares - was no ken as, or in the course of a trading transaction. The totality of all the facts will have to be borne in mind and the correct legal principles applied to these. If all the relevant factors have been taken into consideration and there has been no misapplication of the principles of law, then the conclusion arrived at by the Tribunal cannot be interfered with because the inference question of law, if such an inference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k in trade. This fact is also not denied by the revenue. The period of holding itself has been treated by the legislature to be a relevant consideration for determining whether the capital gain derived is a long term capital gain or a short term capital gain. There is no provision under the Income-tax Act which has provided that in case the assessee is holding the shares for a lesser period than the one prescribed, it will be regarded to be the business income. Dividing the capital gain into two parts i.e. the short term gain or the long term gain itself prove that the period of the holding cannot be the criteria for determining whether the profit derived by the assessee is a long term capital gain or short term capital gain. 16. The CIT(A), we noted in this case while allowing the appeal of the assessee has relied on the decision of the ITAT Nagpur bench in the case of Dineshbhai C. Patel (HUF) in 1TA No.616/2008, which confirmed the decision of the C1T(A), the copy of the decision was filed before us. The appeal against the decision of the Nagpur Bench in the case of Dineshbhai C. Patil (supra) has been dismissed by the High Court vide order dated 28 10 2010 holding that no subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable in the case of the assessee. The decision of the coordinate bench which has been approved by the Hon‟ble jurisdictional High Court is binding on us. We cannot take a different view. We noted that the Nagpur Bench of this Tribunal in the case of Dineshbhai C. Patel „I (supra) has followed the decision of Gopal Purohit Vs. „JCIT (supra), that decision has ,also been approved by the Hon‟ble jurisdictional High Court and SLP against that decision has been dismissed by the Supreme Court We accordingly, confirm the order of the CIT(A) and dismiss both the appeals." 10. Similar facts are involved for the assessment year 2007-08, the year under consideration. Therefore, we see no reason to interfere in the finding of the learned CIT(A), who allowed the issue in favour of the assessees following the decision of its predecessor for assessment year 2006-07 and the same has been confirmed by the Tribunal as stated above. Accordingly, we confirm the order of the CIT(A) in both the cases." 8. Since facts are similar in the present case, therefore, in view of the facts and circumstances of the case and in view of the decision of the Tribunal in the case of Shri Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same afresh as both the lower authorities have not considered the issue in right perspective. 11.2 Learned DR also did not object the contention of the learned AR. 11.3 In view of the facts and circumstances of the case, we set aside this issue to the file of the AO for deciding the issue afresh after affording opportunity of being heard to the assessee. 12. Ground Nos. 4 & 5 relate to not considering the capital gain of Rs.72,437/- and disallowance of business expenses of Rs.3,07,616/-. 12.1 We have decided the issue in respect to short term capital gain. In respect to issue of Rs.13,287/- being speculation income, we have restored the same to the file of the AO. These grounds seem to be related to the above two grounds, therefore, we restore these issues to the file of the AO for passing a fresh order after affording reasonable opportunity of being heard. 13. Ground No.6 is in respect to charging of interest under Section 234B & C, which is consequential in nature, does not require any separate adjudication. 14. Resultantly, appeals of the assessee are allowed in part and partly for statistical purposes. Order pronounced in the open court on this 21st day of Aug.2013. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
