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TMI Blog2017 (8) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the intention of the assessee was to make the business or as investment should be established with the financial statements and the conduct of the assessee. In the balance sheet by declaring stock in trade and accounting the purchases and sales in P&L A/c the assessee declared the intention as a business transaction but not as investments. The assessee is free to make certain assets as business assets and certain assets as investments. This view is upheld in the case of NSS Investments Vs. CIT [2005 (4) TMI 45 - MADRAS High Court]. Therefore, we hold that the assessee is engaged in the business of share trading and resultant Profit or loss required to be assessed as a business income but not as capital gains. Accordingly, we set as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer held that the loss incurred on account of sale of shares was capital gains since the assessee is not a share broker and the shares were held for long period of time and there were no derivative transactions. It was also observed by the A.O. that the assessee has used his own surplus funds for investing in shares without borrowing any money. Accordingly, the assessing officer held that the loss resulting on purchase and sale of shares as a capital loss and rejected the assessee s claim for set off of brought forward losses as well as the current year s loss holding the same was capital loss. Aggrieved by the order of the A.O., the assessee went on appeal before the CIT(A). The Ld. CIT(A) dismissed the assessee s appeal as under: 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 4.11.08 50,304 6,000 7.08 425,000 18.12.07 64070 10000 39.25 392500 19.12.07 22527 10000 43.05 430500 2.1.08 68842 20000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Steel Exchange 25.1.08 28,171 2,000 120.9 241,800 4.11.08 1,414 2,000 17.63 35,250 -206550 Exchange 4 Uniply Industries 2.1.08 24,756 3,450 49.5 170,763 4.11.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst business income is justified. The appellant's ground is dismissed. 3. Aggrieved by the order of the Ld. CIT(A) the assessee is in appeal before us. Appearing for the assessee, the Ld. A.R. argued that during the assessment year 2008-09, the assessee has started the share trading business and incurred loss of ₹ 36,58,783/- and filed the return of income on 30.9.2008 which was accepted by the department. The books of accounts were duly audited by the statutory auditor and in form 44AB, it was clearly mentioned that the business as Trading in shares . The assessee purchased the shares and sold with clear intention to do the business. By referring Page No.50 of the paper book Ld. A.R argued that the assessee has declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and held that the loss was resulted on account of capital loss but not business loss. Accordingly, the Ld. D.R. supported the orders of the lower authorities. 5. We have heard both the parties, perused the materials available on record and gone through the orders of the authorities below. The assessee has filed the return of income for the assessment year 2008-09 and 2009-10 before the due date of filing the return of income, which is not disputed. The assessee has declared the business results for the assessment year 2008-09 as business loss and filed the return of income, which was accepted by the department u/s 143(1) of the Act. There was no dispute that in Profit loss account and in the balance sheet the assessee has admitted the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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