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TMI Blog2016 (2) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... partment in earlier year while framing the assessment u/s.143(3) without change in facts and circumstances during the year under consideration. It is pertinent to mention here that assessee was investing in shares and continuously showing not only short term but huge long term capital gains as well as dividend income which has been accepted by the department in their scrutiny assessment. - Decided against revenue - ITA No.7071/Mum/2013, ITA No.6709/Mum/2013 - - - Dated:- 5-2-2016 - SHRI R.C.SHARMA, AM SHRI AMARJIT SINGH, JM Assessee by : Shri R.Murlidharan Revenue by : Shri Sumit Kumar O R D E R PER R.C.SHARMA (A.M.) : These are the appeals filed by the assessee and revenue against the order of CIT(A), Mum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explain as to why the profit earned on purchase and sale of shares should not be brought to tax as business income instead of income under the head short term capital gains. The assessee submitted that its main object is to make investment in the shares, accordingly it was pleaded that income from sale of shares of the assessee is taxable as capital gains. The submissions made by the assessee were not accepted by the AO. The AO held that the assessee is a trader in shares and not an investor and hence profit earned on such trading activity is taxable as business income instead of capital gains. By the impugned order the CIT(A) allowed assessee s claim in respect of long term capital gains but confirmed the order of AO for treating short te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 5,34 crores. Furthermore, the assessee has not entered into any Futures Options transactions. However, a few transactions had to be squared off due to unavoidable circumstances. The assessee has received dividends of ₹ 97.22 lakhs in the present year which is quite substantial. In all the earlier years, the/acts were similar. The AO after due enquiry treated the assessee as an investor and assessed the gains as 'short-term capital gains. There is no change in the facts and circumstances of the present year. 5. From the record we found that the AO passed an assessment order for A.Y.2005-06 dated 29th June 2009 under section 143 (3) of the Act in which he noted that the assessee is engaged in investment in shares sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .34 crores. 6. In view of the above discussion and keeping in view the decision of Tribunal in case of Gopal Purohit, 34 DTR 42, which was confirmed by Hon ble Bombay High Court as well as decision in the case of SMK Shares Stock Broking, ITAT Mumbai Bench and in the case of Vinod K. Nevatia (ITAT Mumbai Bench), which have already been discussed by the lower authorities in their respective orders, we do not find any merit for deviating from the conclusions drawn by the department in earlier year while framing the assessment u/s.143(3) without change in facts and circumstances during the year under consideration. It is pertinent to mention here that assessee was investing in shares and continuously showing not only short term but huge l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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