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TMI Blog2015 (11) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... as investment only to avail of the concessional rate of tax as urged by the revenue cannot be accepted. Moreover, on the issue of long term capital gains with regard to mutual funds, there are concurrent findings of facts by the CIT(A) and the Tribunal in favour of the respondent-assessee. Whether Tribunal right in holding that the mere entry in books of accounts that shares are held as investment, make the respondent individual an investor, whereas the period of holding of these scrips, the frequency, the volume and value of transactions are indicative of being trader and not an investor? - Held that:- We find that the Assessing Officer in the Assessment Order gives a table of the transaction entered during the year. From the table, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . For the Petitioner : Mr. Arvind Pinto a/w N A Kazi, Adv For the Respondent : Mr. Nitesh Joshi a/w Atul Jasani and Ashok Bhogani, Adv ORDER P. C. This appeal filed by the revenue under Section 260A of the Income Tax Act, 1961 (the 'Act') challenges the order dated 5 December 2012 passed by the Income Tax Appellate Tribunal (the 'Tribunal'). The Assessment Year involved is A.Y. 2005-06. 2. Mr. Pinto, the learned Counsel submits that the proposed revised questions of law for our consideration as under: 1) Whether in law and on the facts of the instant case, was the Tribunal right in coming to the conclusion that the respondent individual is an investor merely on the ground that certain mutual f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT(A) records the fact that this was on account of redemption of mutual funds which were held for more than 12 months. It also records the fact that the respondent-assessee had received dividend on these mutual funds and on redemption there was a gain of ₹ 22.46 lakhs. Moreover, the said mutual funds were held as investment and treated the same in the books of accounts. Further, the CIT(A) also records the fact that units of mutual funds cannot be traded and normally one has to only surrender the same against the redemption value thereof. 5. So far as short term capital gains are concerned, the CIT(A) placed reliance upon the Circular No.1827/1989 dated 31 August 1989 as modified by Circular No.4/2007 dated 15 June 2007 issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred an appeal to the Tribunal. So far as long term capital gain is concerned, the Tribunal on independent examination of the facts concurred with the view of the CIT(A). This by recording independently its reasons, which are similar to that of CIT(A). Thus the revenue's appeal on above ground was dismissed. So far as short term capital gain is concerned, the Tribunal on independent examination of facts reached the same conclusion as the CIT(A) for reasons though largely similar were independently recorded including the fact that so far as investment in shares are concerned, the assessee took delivery of the shares and not entered into intraday trading. 7. The Tribunal particularly records the fact that it is not the case of reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to avoid and/or reduce the tax. In the absence of any factual basis the allegation that the entire exercise was carried out as investment only to avail of the concessional rate of tax as urged by the revenue cannot be accepted. Moreover, on the issue of long term capital gains with regard to mutual funds, there are concurrent findings of facts by the CIT(A) and the Tribunal in favour of the respondent-assessee. It is not shown to be perverse in any manner. Consequently, Question No.1 as proposed does not give rise to any substantial question of law and accordingly not entertained. Regarding Question No.2: 9. The grievance of the Mr.Pinto is that the impugned order completely overlooked the fact that purchase turn over of ₹ 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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