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TMI Blog2014 (5) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... I 7 - BOMBAY HIGH COURT] followed – the order of the CIT(A) upheld – Decided against Revenue. - ITA no. 4324/Mum./2010 - - - Dated:- 24-1-2014 - SHRI R.C. SHARMA AND SHRI AMIT SHUKLA, JJ. For the Appellant : Mr. O.P. Singh For the Respondent : Dr. P. Danial a/w Mr. S.S. Makhija ORDER Per: Amit Shukla: The present appeal has been preferred by the Revenue challenging the impugned order 15th March 2010, passed by the learned Commissioner of Income Tax XXI, Mumbai, for the quantum of assessment passed under section 143(3) of the Income Tax Act, 1961 (for short the Act ) for the assessment year 2006 07. The only issue involved in this appeal is, whether or not the short term capital gain and long term capital gain on transfer of shares amount to business income. The Assessing Officer has treated the sale of shares which were shown under the heads Short Term Capital Gain and Long Term Capital Gain as Business Income . 2. Facts in brief: The assessee is an individual having income from business as partner in various firms, income from capital gain on transfer of shares securities and income from other sources. As per the computation of income, follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f shares in respect to which the assessee has filed detailed explanation vide letter dated 20th October 2008 and 28th November 2008. The assessee s reply has been incorporated by the assessee in detail. The Assessing Officer rejected the assessee s explanation and after detail reasoning and relying upon various case laws, has treated the short term capital gain of Rs. 56,53,869 and long term capital gain of Rs. 16,36,053 as business income. 4. Before the learned Commissioner (Appeals), the assessee filed a very detail explanation which has been dealt by the learned Commissioner (Appeals) from Page 5 to 11 of the appellate order. The sum and substance of the submission are that the share transactions under the head Long Term Capital Gain , were held for a period of more than five to ten years and the gain from the shares shown under the head Short Term Capital Gain , the average period of holding is more than nine months. The period of holding and resultant gain earned under the short term capital gain and long term capital gain, were as under: CHART SHOWING EARNING OF LONG TERM CAPITAL GAIN Period Purchase value (Rs.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that due too large number of companies listed in the stock exchange and volatility of the market in this assessment year, practically, every investor frequently shuffle his portfolio. This does not lead to an inference that the assessee is a trader. Besides this, the assessee has maintained separate records and portfolio in respect of transactions of investment and the shares in respect of which trading was shown done and speculation profit was shown. Reliance was also placed on several decisions including that of the decision of Jurisdictional High Court in CIT v/s Gopal Purohit, [2011] 336 ITR 287 (Bom.) 6. The learned Commissioner (Appeals) accepted the assessee s contention and directed the Assessing Officer in the following manner:- I have carefully considered the submissions made by the Authorized Representative. have perused the Assessment Order and after going through the relevant case laws referred to both by the Assessing Officer as well Authorized Representative find that appellant's case stands squarely covered by the ratio laid down in the case of Gopal Purohit of the ITAT 'G' Bench Mumbai which order has since been approved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee s case are to be taxed under the head Capital Gain and not under the head Business Income . Besides this, the learned Counsel for the assessee also rebutted various reasoning given by the Assessing Officer and referred to the submissions which were made by the assessee before the learned Commissioner (Appeals) and also the findings given by the learned Commissioner (Appeals). 9. We have heard the rival contention, perused the relevant findings of the authorities below and the material available on record. As pointed out by the learned Counsel for the assessee, it is seen that the Tribunal in the case of assessee s husband other and family members has decided this issue in favour of the respective assessee, wherein identical facts were involved. A list of such cases are as under: i) Shri Satpal Singh Sethi, ITA no.3650/Mum./2010 dtd. 30.09.2011; ii) Shri Rajpal Sethi, ITA no.4325/Mum./2010 dtd. 18.01.2012; iii) Smt. Harinder Sethi, ITA no.3649/Mum./2010 dtd. 25.04.2012. 10. In all these cases, the Tribunal has held that the transaction of shares which have been assessed as Short Term Capital Gain and Long Term Capital Gain are to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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