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TMI Blog2014 (12) TMI 1187X X X X Extracts X X X X X X X X Extracts X X X X ..... ER For the Appellant : Shri Dharmesh Shah For the Respondent : Shri Jeetendra Kumar ORDER PER N.K. BILLAIYA, AM: These cross appeals by the assessee and the department are against the very same order of the Ld. CIT(A)-27, Mumbai dt. 3.4.2012 pertaining to A.Y.2008-09. 2. The grievance of the assessee is that the Ld. CIT(A) erred in treating income from Short Term Capital Gains for ₹ 6,23,695/- as business income and the grievance of the Revenue is that the Ld. CIT(A) erred in treating the business income of ₹ 18,58,332/- as Short Term Capital Gain. As grievance of the assessee and the Revenue relate to the same set of facts, both the appeals were heard together and are disposed of by the common order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was further explained that the assessee has no administrative set up nor there is any organized effort by the assessee to earn profit except that the shares were purchased and they were sold promptly after the said shares has received the expected appreciation. 4.1. After considering the facts and the submissions of the assessee, the Ld. CIT(A) observed that the assessee has been investing in shares since the year 2000 and has been consistently showing the short term and the long term gains since the year 2000. The Ld. CIT(A) further observed that the income offered from capital gains on sale of shares was accepted in the earlier years in the assessment orders made u/s. 143(3) of the Act. The ld. CIT(A) further observed that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. (P). Ltd. 82 ITR 586 has observed as under Whether a particular holding of shares is by way of investment or forms part of the stock-in-trade is a matter which is within the knowledge of the assessee who holds the shares and it should, in normal circumstances, be in a position to produce evidence from its records as to whether it has maintained any distinction between those shares which are its stock-in-trade and those which are held by way of investment. 8.1. It is not in dispute that all the transactions under reference entered into by the assessee has been settled by actual delivery of shares and the money is actually paid and received in each and every case, whereas in case of a trader, ordinarily the transactions are sett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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