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TMI Blog2014 (11) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... be assessed under the head capital gains and not under the head business income as has been done by the Assessing Officer" 2. In a nutshell, the department is aggrieved by the order of the Tribunal confirming the order of the Commissioner of Income Tax (Appeals), who held that the income of the respondent/assessee from sale of shares should be brought under the head capital gains and not under the head business . 3. There is not much of fact to be added than what has been recorded by the Commissioner of Income Tax (Appeals) and extracted by the Tribunal in paragraph (5) of its order. We set out the same hereunder for better clarity: "5. We have heard both sides. Perused the orders of the authorities below. The Commissioner of Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss and simultaneously the legislature exempted Long Term Capital Gains u/s 10(38) from the levy of tax and subjected to tax @ 10% on Short Term Capital Gains provided Securities Transaction Tax has been passed on such transactions. In this context the Hon'ble ITAT in the case of Gopal Purohit Vs. JCIT 122 TTJ 87 held as under in para 8.1. 5.2. 'In our view, the legislative change of this nature, whereby no change has been made in respect of nature and modus operandi of such share transactions, resulting into any advantage cannot be taken away by the Revenue Authorities in this manner and in these circumstances, we are of the view that, principle of consistency, though it is an exception to the principle res judicata must be applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f trading in shares nor can be treated as an adventure in the nature of trade. For the reasons given above, I hold that the entire income from the sale and purchase of shares it to be assessed under the head "Capital Gains" as rightly declared by the appellant either as Long Term Capital Gains (LTCG) or Short Term Capital Gains (LTCG) depending upon the period of holding. I therefore direct the assessing officer to accept the capital gain declared by the appellant from the sale of shares and delete the addition made treating the Long Term Capital Gains as business Income." 4. We are in agreement with the reasoning of the Commissioner of Income Tax (Appeals), which found favour with the Tribunal, that the assessee is only an investor in sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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