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TMI Blog2018 (4) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... osing that he maintained distinction between those shares which are held as stock in trade and those shares which are held as investment. In our opinion, the aforesaid burden was lying upon the appellant to prove this material aspect before the Assessing Officer but it is obvious from the material available on record that he has not been able to produce any material to show that he maintained distinction between the share held in stock in trade or those held by way of investment. If the assessee has failed to discharge his burden, caste upon him by law in support of his claim, then obviously he is not entitled to claim any benefit. The whole basis of argument of learned counsel for the appellant is that an affidavit was filed by him in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short term and long term capital gains. No tax was paid on the long term capital gains claiming the same to be covered under Section 112 and paid tax @ 10% on the short term capital gain as per provisions of Section 111A. The Assessing Officer while examining the case treated these transactions of purchase and sale of shares as income from business and profession and taxed the same accordingly. According to facts, the Assessing Officer made enquiry at the time of assessment, details as required by it, were submitted by the appellant. All the transactions were found recorded in the Demate Account of the appellant through recognized stock exchanges. The aforesaid facts are not in dispute. At the time of assessment, the Assessing Officer whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 30.05.2008 passed by learned CIT (A), Bikaner was set aside and the order of the Assessing Officer, was restored. The instant appeal has been filed by the appellant-assessee under Section 260A of the Income Tax Act, 1961 assailing the order dated 26.06.2009 passed by the ITAT, Jodhpur in Appeal No.499/JU/2008. Learned counsel for the appellant vehemently argued that complete wrong finding was given by the Assessing Officer to treat the transactions of purchase and sale of the shares as business transactions because as per law, the transaction of purchase and sale of shares by the appellant was in the nature of investment, therefore, the short term and long term capital gains claimed by the appellant are correct. Learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rong premise. Therefore, the order of learned ITAT may kindly be set aside and the order of the CIT (A), Bikaner, may kindly be restored. Per contra, Mr. K.K. Bissa, learned counsel for the Revenue vehemently argued that no error was committed by the Assessing Officer or by the learned ITAT while treating the income of the appellant arising out from the share trading and other source as business income because indisputably the transactions of purchase and sale were made by the assessee for 247 time and 263 times respectively, and this fact is not disputed by the appellant. The learned Tribunal while following the judgment of Apex Court in the case of CIT Vs. Associate Industrial Development Company Pvt. Ltd. reported in 82 CTR 586 held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the aforesaid burden was lying upon the appellant to prove this material aspect before the Assessing Officer but it is obvious from the material available on record that he has not been able to produce any material to show that he maintained distinction between the share held in stock in trade or those held by way of investment. If the assessee has failed to discharge his burden, caste upon him by law in support of his claim, then obviously he is not entitled to claim any benefit. The whole basis of argument of learned counsel for the appellant is that an affidavit was filed by him in which everything was explained that too before the CIT (A), Bikaner. However, in our opinion, it was the duty of the assessee to maintain record for disti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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