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TMI Blog2012 (1) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue, we respectfully following the consistent view of the Tribunal and the ratio of the decision of the Hon’ble Jurisdictional High Court in the aforementioned cases, hold that the ld. CIT(A) was fully justified in directing the AO to accept the appellant’s claim of short term capital gain and long term capital gain on share transactions, where the delivery has been taken or given and Security Transaction Tax has been paid. - ITA No.4325/Mum/2010 - - - Dated:- 18-1-2012 - PRESIDENT SHRI G.E.VEERABHADRAPPA AND SHRI D.K.AGARWAL (JM) For the Petitioner : Shri C.G.K.Nair For the Respondent : Dr.P.Daniel ORDER PER D.K.AGARWAL (JM) This appeal preferred by the Revenue is directed against the order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... script transacted, the amount involved, and number of transactions undertaken, it was clear that the assessee was not an investor but a trader and had entered into the share market for the purpose of earning quick profit only. Accordingly a show cause notice was issued by the Assessing Officer asking the assessee to explain as to why capital gain declared by him in the return of income filed be not treated as business income. In response the assessee filed a detailed reply before the AO vide his letter dated 21.11.2008 interalia stating therein, that his object was to act as a prudent investor and earn regular income by way of dividend which was evident from his return showing earning of dividend income in the year under assessment itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the Tribunal. The AO has set out 12 criteria in the assessment order on the basis of which according to him, after analyzing the facts of the case, the assessee was held to be a trader and not an investor, thereby treating all the capital gains, long term capital gains and short term capital gains as business income. The AO accordingly held the capital gains (long term capital gains and short term capital gains) as business income and assessed the total income of the assessee at an income of ₹ 1,18,64,040/- vide assessment order dated 23.12.2008 passed u/s 143(3) of the Income Tax Act, 1961 (in short the Act). 3. On appeal, the ld. CIT(A) after examining the chart showing the period of holding of shares both for earning long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been given or taken and Security Transaction Tax has been paid. He, therefore, submits that the order passed by the ld. CIT(A) be reversed and that of the AO be restored. 6. On the other hand, at the outset, the ld. Counsel for the assessee submits that the assessee s case is squarely covered by the recent decision of the Tribunal in the case of assessee s father in ACIT V/s Shri Satpal Singh Sethi in ITA No.3650/Mum/2010 (AY:2006-07) dated 30.9.2011 wherein the Tribunal on the similar facts while upholding the order of the ld. CIT(A) accepted the assessee s stand. He also placed on record the copy of the said order of the Tribunal and also filed the copy of the assessment order for the assessment year 2004-05 in the case of assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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