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TMI Blog2015 (7) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... icer to treat the profit/gains earned on the transactions of purchase and sale of shares and securities of Rs. 75,05,935/- as long term capital gain instead of treating the same under the head "business income". 3. Learned counsel for the assessee at the very outset submitted that issue in dispute is squarely covered in favour of the assessee by the orders of ITAT passed in ITA No. 127/Ahd/2009 and ITA No. 2076/Ahd/2009 for Assessment Year 2005-06 and 2006-07. He placed on record the copies of the Tribunal's orders. 4. The brief facts of the care are that assessee has filed his return of income electronically on 30th September, 2008 declaring total income at Rs. 1,32,33,060/-. The case of the assessee was selected for scrutiny assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore ld. Commissioner of Income Tax (Appeals). Ld. first appellate authority after following the order of his predecessor in Assessment Year 2007-08 and the orders of ITAT, Ahmedabad set aside the action of Assessing Officer and directed him to treat the assessee as an investor and accordingly assess the gains from sale of shares as a long term capital gain as well as short term capital gain. The finding of the Commissioner of Income Tax (Appeals) reads as under: "4.1. I have duly considered the above submission of the appellant and find that first ground of appeal taken by the appellant is identical to the ground of appeal no. 1 taken in the immediate preceding assessment year, i.e. A.Y. 2007-08 vide Appeal No. CAS/II/403/09-10, which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant shall, accordingly, furnish details of all such scrips, viz. gain from shares which have been held for a period of less than 30 days before the Assessing Officer for giving effect to this order. The first ground of appeal is, therefore, partly allowed." 6. With the assistance of ld. representatives, we have gone through the record carefully. We find that in this assessment year, Assessing Officer has not independently discussed the facts and circumstances exhibiting the number of transactions of purchase and sales of shares of the assessee. He simply relied upon the observations of the Assessing Officer in Assessment Year 2007-08. We find that in assessment year 2005-06 under similar circumstances an addition of Rs. 68,87,173/- was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gains / dividends in earlier years and the shares have all along been treated as investments in the books of account/balance sheets. In these circumstances, we, therefore, direct the AO to accept the short-term capital gain amounting to Rs, 62,67,735/- declared by the assessee in the return of income. Therefore, ground no.1 in the appeal is allowed. 6. As regards ground no.1 in the appeal of the Revenue, the Id. CIT(A) pointed out in the impugned order that the AO ignored the fact that the relevant shares had been held by the assessee for a substantially longer period and the various criteria which the AO applied throughout the assessment order in treating the share transactions allegedly giving rise to STCG as income from business, cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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