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TMI Blog2016 (11) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... e of shares as capital gain, short term or long term as the case may be - Decided in favour of assessee - I .T.A. No. 2265/Mum/2010 - - - Dated:- 28-9-2016 - SHRI G.S. PANNU, AM AND SHRI SANDEEP GOSAIN, JM For The Appellant : Shri Vimal Punmiya For The Respondent : Shri Ashwani Sinha ORDER PER SANDEEP GOSAIN, JM : This appeal filed by the assessee is directed against the order of ld. CIT(A) -20, Mumbai, dated 4-1-2010 for A.Y. 2006-07. 2. The only ground raised by the assessee in this appeal is the treatment of profit arising on share transaction of ₹ 1,05,41,397/- as business as held by the A.O. against short term capital gain as offered by the assessee. 3. Brief facts in this case are that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee had profit motive while dealing in shares and, therefore, the income generated on share profit is business income. 4. On further appeal before us, the ld. Counsel for the assessee submitted a detail written submission in the form of comparative chart which demonstrated that the assessee is, in fact, engaged in the business of real estate development and in assessee s own case in A.Y. 2007-08, the Mumbai Bench of Tribunal in ITA No. 1054/Mum/2011 vide its order dated 27.9-2013 has held that the assessee is an investor and not a trader. He further relied on the order of the co-ordinate Bench of this Tribunal in the case of Sagar Construction vs. ACIT in ITA No. 4646/Mum/2011 dated 11-03-2015 wherein it has been held that the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t both A.O. ld. CIT(A) were at error in considering the assessee as trader in this year. He further stated that all transactions are delivery based transactions and are not with profit motive. 5. The ld. Counsel for the assessee also relied on the Board Circular No. 4 of 2007 as well as the Speech of Hon ble Finance Minister supporting his contention that all conditions should be same cumulatively and independent and isolated condition cannot be used against the assessee. Therefore, he stated that the assessee is an investor. 6. The ld. D.R. submitted that the facts of the each case in each year to be seen separately and, therefore, reliance placed by the ld. Counsel for the assessee on the decision of the Tribunal in assessee s own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this issue. Each case is, therefore, to be based on its own factual situation. A perusal of the profit and loss account of the assessee shows that the assessee has separately shown share trading profit, long term capital gains on shares and profit from business. In the balance sheet, the assessee has shown shares under the head investment . These investment shares have been valued at cost . The Hon ble Supreme Court in the case of CIT Associated Industrial Development Co Pvt. Ltd. 82 ITR 586, which decision has also been considered by the CBDT in its Circular No. 4/2007 dt. 15.6.2007, has observed that : Whether a particular holding of shares is by way of investment or forms part of the stock-intrade is a matter which is within the know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l gains where the shares are held for more than 12 months. Had this been not the case, all the gains on shares would have been considered as business income only. The fact that the law recognizes such volatility and has specifically provided a separate holding period in respect of such shares makes it very clear that gains on such shares having a holding period of less than 12 months and held as investment would be considered as short term capital gains only. Thus the assessee s claim cannot be negated on the basis of frequency of transaction as held in the case of Gopal Purohit (supra). 9.1. As regards the allegation that the borrowed funds had been applied for investment in shares, it has been held by the Tribunal, Delhi Bench in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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