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TMI Blog2016 (11) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 8-9-2016 - Shri Joginder Singh, Judicial Member For The Assessee : Shri N.M. Porwal For The Revenue : Shri Sumit Kumar-DR ORDER The assessee is aggrieved by the impugned order dated 24/09/2014 of the Ld. First Appellate Authority, Mumbai. The only ground raised in the present appeal pertains to long term/short term capital gain on profit on sale of shares. 2. During hearing, Shri N. M. Porwal, ld. counsel for the assessee, claimed that the impugned issue is covered by the decision of the Tribunal in the case of ACIT vs Dilip Variya (ITA No.1768/Mum/2010, etc.) order dated 15/05/2013 and also a decision from Hon'ble jurisdictional High Court (ITA No.1088 of 2011) order dated 09/01/2013 and CIT vs Dili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctional High Court dismissed the appeal of the Revenue affirming the decision of the Tribunal for Assessment year 2005-06. It is also noted that the Tribunal vide order dated 15/05/2013 in ITA No.1768, 1769/Mum/2010 (Assessment year 2006-07) and ITA No.1839/Mum/2009 (Assessment year 2005-06) held as under:- ITA No.1768/Mum/2010 ITA No.1769/Mum/2010 are appeals filed by the revenue. They are directed against two separate orders passed by Ld. CIT(A) -35, Mumbai dated 14/12/2009 in respect of assessment year 2006-07 in the case of the respective assessees. ITA No.1839/Mum/2009 is an appeal filed by the assessee and it is directed against order passed by Ld. CIT(A)-XXV, Mumbai dated 16/1/2009 in respect of assessment year 2005-06. Groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Commissioner of Income Tax (Appeal) failed to appreciate that appellant has shown shares investment under the head INVESTMENT since 25 years and assessed as capital gain. 3. At the outset it was pointed out by the Ld. AR that assessees being individuals in the present case were assessed by the AO in respect of income earned by them on sale and purchase of shares under the head business income as against the claim of the assessee that the same is assessable under the head capital gain . In the case of Shri Dilip Variya the Tribunal vide its order dated 24/3/2010 had admitted the claim of the assessee that income arising to the assessee out of sale and purchase of shares was assessable under the head capital gain an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derivatives, intra day trading or purchase and sale within short period or long period? c) Whether on the facts and circumstances of the case and in law the Tribunal in holding that the entire profits arising out purchase and sale of all shares assessed under the head income from business and profession by the AO be treated as investm3ent and the benefit of indexation and exemptions on the share investments claimed as long terms investments be allowed? 3) The dispute in the present case is whether the income earned from the sale of shares is admissible as business income under the head capital gain. It is the case of the revenue that the Assessing officer taking into account the volume and turn over coupled with period of sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.1 It was further submitted that in the case of Smt. Neena D. Variya also similar is the position and if the ratio of aforementioned decisions of Tribunal and Hon ble Bombay High Court are applied to the facts, then the income has to be assessed under the head capital gain only as Smt. Neena D. Variya is also engaged in similar activity for the past so many years. He in this regard referred to the submissions of the assessee recorded by Ld. CIT(A) in the case of Smt. Neena Variya in respect of assessment year 2006-07 as under: (i) The appellant is assessed to income-tax since 25 years and the profit on shares has been shown as capital gain i.e. long term or short term in the past. (ii) The number of transaction increa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, ITA No.1768/Mum/2010 is dismissed. 5.1 So far as it relates to appeal filed in the case of Smt. Neena D. Variya similar were the submissions of the assessee before Ld. CIT(A) in which it was stated that the assessee is assessed to income tax since last 25 years and the profit on shares has been shown as capital gain . The increase in the transaction is only due to market trend. The shares were shown as investment and not as stock-in-trade in the balance sheet. The investment was purely out of assessee s own funds. These submissions of the assessee have not been controverted by the revenue. If the same is taken into account then the ratio of aforementioned decision of Hon ble Bombay High Court will also be applicable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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