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TMI Blog2018 (4) TMI 1425X X X X Extracts X X X X X X X X Extracts X X X X ..... was a regular investor in shares and securities, and such investments were made out of her own funds with the intention of not only earning dividend, but also seeking capital appreciation in the long run. So far as the Short Term Capital Gains was concerned, assessee specifically pointed out that such transactions were undertaken keeping in view the market volatility and the specific situation of investee-companies, but otherwise the intention has been to make long term investments in shares and securities. All these aspects have been merely brushed aside by the Assessing Officer, an action which, in our view, has been rightly negated by the CIT(A). - Decided against revenue - ITA NO. 375/MUM/2010, ITA NO. 6059/MUM/2012 And ITA NO. 6155/MU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng an income of ₹ 60,64,790/- which, inter-alia, included Short Term Capital Gains on sale of shares of ₹ 61,00,839/- and Income from Other Sources of Rs.(-) 36,052/-. In the assessment finalised u/s 143(3) of the Act dated 25.11.2008, the Assessing Officer differed with the assessee only on the assessability of the Short Term Capital Gains declared by the assessee. As per the Assessing Officer, the Short Term Capital Gains declared by the assessee on purchase and sale of shares was liable to be assessed as Business Income and not as income under the head Capital Gains . Pertinently, so far as the action of the assessee of declaring the gain on purchase and sale of shares as Long Term Capital Gains is concerned, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Term Capital Gains of ₹ 61,00,839/- was liable to be assessed as Capital Gains and not as Business Income . The relevant discussion by the CIT(A) is as under :- 5. I have carefully considered the facts of the case, arguments of the Assessing Officer and the submissions of the AR of the appellant. I find that the appellant remains an investor and cannot be classified as engaging herself in share trading activity. The number of scrips in short term amount to only 78 and in the long term there are only 8 scrips. Turnover of about ₹ 5 crores is not unreasonable as the gain declared is about ₹ 61 lakhs. Most important aspect of the transactions of the appellant is that the holding period has been very high. Only in 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in shares and there is sufficient evidence to show that she is a short term and long term investor. In view of this the AO is directed to treat the declared income of ₹ 61,00,839/- as capital gain and not as business income. This ground of appeal is allowed. In the above background, Revenue is in appeal before us. 6. In the Grounds of appeal, the only point raised by the Revenue is that CIT(A) has not considered the reasons advanced by the Assessing Officer in treating the share transactions as Business Income . 7. At the outset, we find that the said plea of the Revenue is quite misplaced inasmuch as the relevant discussion in the order of CIT(A), which we have reproduced in the earlier paras, clearly brings out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced in the Paper Book, as also the comparative Chart of past four years to demonstrate that there is a similarity in the manner in which assessee has purchased and sold the shares in this year, including the period of holding. Apart therefrom, it has also been pointed out that the parameters laid down by the CBDT in its Circular no. 4/2007 dated 15.06.2007 are fully complied with in assessee s case and, therefore, on this point also, the gains have been rightly assessed as Capital Gains by the CIT(A). In this context, reference has been made to page 7 of the Paper Book wherein the Chart showing compliance with Circular no. 4/2007 dated 15.06.2007 (supra) has been brought out. 9. In our considered opinion, the manner in which the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008-09 which is directed against the order of CIT(A)-34, Mumbai dated 30.07.2012, which in turn has arisen from the order dated 27.12.2010 passed by the Assessing Officer, Mumbai under section 143(3) of the Act. 11. In these cross-appeals, the primary issue arises from the action of the Assessing Officer in treating the Short Term Capital Gain on purchase and sale of shares as Business Income . This aspect is similar to what has been considered by us in the appeal of the Revenue for Assessment Year 2006-07 in the earlier paras, where the CIT(A) held such transactions to be assessable as Capital Gains only. The only distinction in Assessment Year 2008-09 is that the CIT(A) treated the gain arising out of purchase and sale of shares both ..... X X X X Extracts X X X X X X X X Extracts X X X X
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