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TMI Blog2015 (2) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... l funds held for less than twelve months, which are delivery based and treat the same as giving rise to short term capital gains. The findings recorded by CIT(A) have not been controverted by ld. DR. Accordingly, we do not find any reason to interfere in the order of CIT(A) for allowing assessee’s claim of long term and short term capital gains earned on sale of shares and mutual funds. - Decided against revenue - ITA No. 3520/Mum/2010 - - - Dated:- 18-2-2015 - SHRI R.C. SHARMA, AM SHRI SANJAY GARG, JM Revenue by: Shri Pavan Kumar Beerla Assessee by: Shri Nishit Gandhi O R D E R PER R.C. SHARMA (A.M): This is an appeal filed by the Revenue against the order of CIT(A), dated 16-2-2010 for the Assessment Year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tentions have been heard and record perused. The short term capital gain declared by the assessee was treated by the AO as business income. By the impugned order, the CIT(A) directed the AO to treat the same as short term capital gain after having the following observations :- 3.3 I have carefully perused the assessment order, submissions made by the A.R on behalf of the appellant and the facts of the case. The issue involved is in respect of treatment of long term capital gains on sale of shares and sale of mutual funds, sold after 01.10.2004 aggregating to ₹ 14,10,430/- [on sale of shares ₹ 5,87,180/- on mutual funds ₹ 8,23,250/- as business income by the A.O and thereby denying exemption to the appellant uls.10(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt's judgement in the case of CIT vs. Gopal Purohit delivered on 6th January, 2010' and has prayed that income derived by the appellant from investment activity be treated as long term and short term capital gains respectively and the same should not be treated as income from business. Based on the finding recorded by ITAT in the case of CIT vs. Gopal Purohit 122 TTJ Mumbai 87 , it is open to an assessee to maintain two separate portfolios one relating to investments in shares and other relating to business activities involving dealing in shares. The only delivery based transactions fall within the purview of nature of investment transactions giving rise to capital gains . As stated above, in the past the Department has accepte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oks of accounts and thereby gain made on the transfer/redemption as business profit in disregard of the facts of the case of appellant. He failed to appreciate the facts that the appellant is not a trader in shares the units of mutual funds in investor. In this respect he ought to have appreciated that there is no justification for considering shares as stock in trade as per circular No. 4/2007, dated 15.6.2007. 4.1 While disposing off Ground No. 2 3, necessary relief has been allowed to the appellant. Therefore, this ground of appeal has become infructuous and is dismissed. 3. Against the above order of CIT(A), the Revenue is in further appeal before us. 4. We have considered rival contentions, carefully gone through the or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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