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TMI Blog2017 (2) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was shown that the gains/loss incurred on such shares constituted for not more than one-third of the total amount of short term capital gain disclosed by the assessee in its return of income. Thus the gain earned by the assessee has rightly been shown as ‘income from capital gains’. The findings recorded by Ld. CIT(A) are well reasoned and correct in view of the facts of this case as well as under the law. - Decided against revenue - ITA No.4713/Mum/2011 - - - Dated:- 15-2-2017 - Shri D.T. Garasia, Judicial Member, and Shri AshwaniTaneja, Accountant Member For The Appellant : Shri MC Omi Ningshen, DR For The Respondent : Shri Rahul K. Hakani, AR ORDER Per AshwaniTaneja, AM: This appeal has been filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Ld. CIT(A) has wrongly reversed the order of AO, therefore, order of Ld. CIT(A) should be reversed and that order of AO should be restored. 3.Per contra Ld. Counsel of the Assessee vehemently supported the order of Ld. CIT(A). It was submitted that assessee has been making investment into shares since last many years. The amount invested in shares has always been shownas part of Investment in the Balance Sheet. The resultant gain arising from the shares has always been offered as assessable under head income from capital gains and the same has been accepted as such by the AO. It is for the first time that in this year the AO has treated as income from business . He relied upon the detailed and well-reasoned finding of Ld. CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in and minimise the losses. Ld. CIT(A) examined all the details and held that the assessee always acted like an investor and therefore, resultant gain was assessable under the head income from capital gain . The relevant part of order of Ld. CIT(A) reproduced hereinabove: DECISION WITH REASONING: I have considered the submissions of the representative and the stand taken by the A.O. admittedly, the appellant undertook share transactions only between November, 2007 to March, 2008 and in the beginning of the year there were very few transactions upto September, 2007 whereas the A.O. held that the appellant undertook share transactions on regular basis throughout the year. Further, the share transactions undertaken by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of security deposit for lease of premises given by the appellant. Apart from the above lease deposit of ₹ 1,30,000/- is shown as borrowing and the same was explained as utilised for making loans and advances which is much higher at ₹ 80 lakhs. Thus, the A.O. erred in giving a finding in the assessment order that the appellant utilized borrowed funds contrary to the material available on record. Further, it is noticed that the appellant consistently valued closing investment in shares at cost in the earlier years and the loss on account of decline in the value of the shares was not claimed for A.Yrs. 2006-07 2007-08. In fact, the appellant has consistently offered the profit on sale of shares under the head short term capital g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 344 days and 144 days. Further, as contended by the representative even though the shares were purchased as investment, the subsequent developments like change in Government policy, change in management and change in share market trend forced the appellant to sell the shares within short time to safe guard investment which would not alter the investment into stock-in-trade. As held by the Hon ble Mumbai Tribunal in the case of Gopal Purohit vs. JCIT (29 SOT 117) the principle of consistency should be followed and the very fact that the appellant admitted profit on sale of shares under the head capital gains in the earlier years shown that the same cannot be changed in the subsequent years. 5.We have gone through the detailed and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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