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TMI Blog2015 (2) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... was doing business of purchase and sale of shares of ADL and SIL,that in other cases he was only investor.We do not find any infirmity in his order - Decided against revenue Addition u/s 68 - CIT(A) deleting the addition - Held that:- We have perused the material on record.We find that the FAA has given categorical finding of facts about filing of confirmation letters of the creditors,copies of their bank accounts, acknowledgments of returns of income filed by them.In our opinion,these documents were sufficient to prove the genuineness of the transactions as well as the creditworthiness of the lenders.In our opinion the assessee had discharged the onus cast upon him,but the AO had not brought any evidence on record to negate the evidences produced by the assessee.In our opinion,the AO was not justified in invoking the provisions of section 68 for the loans taken in earlier assessment years.Considering the facts and circumstances of the case,we are of the opinion that the order of the FAA does not suffer from any legal of factual infirmity - Decided against revenue. Share transactions incomeof ADL and SIL as business income - Held that:- While deciding the appeal filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to submit additional new ground which may be necessary. Assessee has filed cross-objections wherein following grounds have been raised: 1. That the learned CIT (Appeal) was not justified on facts and in law in treating net gain on sale of shares of Ankur Drugs and Pharma Ltd.and Seri International Ltd. as his income from business. 2.(i) That on the facts of the case, the dividend income as claimed by the assessee is true and correct and there is no justification of setting aside the same to the learned ITO for re-verification and disallowance of the proportionate expenses. (ii) That the learned CIT (Appeal) was not justified on facts and in law in giving direction in alia of the disallowance of proportionate expenses in respect of the dividend income. 3. That the Cross Objector be allowed to add, alter, amend, modify or withdraw any of the grounds of cross-objection(s). Assessee,an individual,dealing in parts of computers, filed his return of income on 02.11.2007 declaring income of ₹ 3.153 Lakhs.AO completed the assessment u/s 143(3) of the Act on 30. 12.2009,determining the income of the assessee at ₹ 74.78 Lakhs. 2.First ground of appeal deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 issued by the CBDT on 15.06.2007, that the assessee could have two portfolios, investment portfolio and trading portfolio. It was further argued that the purchase and sale of shares in case of the assessee was occasional and an independent activity, that the underlying motive was to make investment, that the assessee had maintained separate set of books of accounts,that he was engaged in the transaction of purchase and sale of shares where no delivery was taken, that the income from such transaction was offered under the head business income,that he had liquidated the investment after lapse of reasonable time that merely on the basis of turnover it could not be concluded that the assessee was doing the business of shares. 4.After considering the submission of the assessee and the assessment order,the FAA held that the AO had not appreciated certain basic facts, that the share transaction or investment in shares were not the primary source of livelihood/main activity of the assessee, that the assessee was basically engaged in the business of trading in computers,that in earlier years purchase and sale of shares was disclosed in his returns of income as STCG/LTCG, that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial before us.We find that the FAA has analysed the share transactions at length in light of the CBDT circular and has arrived at the conclusion that the assessee was a investor for most of the share transactions.He found that except for the shares of ADL and SIL the assessee had behaved as an investor.He found that the assessee had not borrowed any money for purchasing the shares,that except for the shares of ADL and SIL he had held the other shares for a very long period,that he was engaged in the business of computers.Not only this unsold shares were valued at cost.Considering these factors we are of the opinion that the assessee could not be taxed under the head business income for the entire share transactions.CBDT circular has recognised the principle that a person can have two portfolios- he can be an investor and a trader at the same time.After in depth analysis of the facts the FAA had rightly held that for the assessee was doing business of purchase and sale of shares of ADL and SIL,that in other cases he was only investor.We do not find any infirmity in his order. Therefore, upholding his order we decide ground no.1 against the AO. 6.Next ground of appeal is about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e preceding assessment years,that the assessee had duly discharged his burden as required u/s.68 of the Act,that the confirmations filed by the assessee were not disproved by the AO,that no contrary evidences were brought on record to prove that the creditors were ingenuine or bogus,that the all the transaction were made through regular banking channels. 8.Before us,the DR relied upon the order of the AO and the AR supported the order of the FAA. We have perused the material on record.We find that the FAA has given categorical finding of facts about filing of confirmation letters of the creditors,copies of their bank accounts, acknowle -dgments of returns of income filed by them.In our opinion,these documents were sufficient to prove the genuineness of the transactions as well as the creditworthiness of the lenders.In our opinion the assessee had discharged the onus cast upon him,but the AO had not brought any evidence on record to negate the evidences produced by the assessee.In our opinion,the AO was not justified in invoking the provisions of section 68 for the loans taken in earlier assessment years.Considering the facts and circumstances of the case,we are of the opinion th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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