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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 ..... sment Year 2006-07 preferred by the Revenue, which is directed against the order of CIT(A)-29, Mumbai dated 12.10.2009, which in turn has arisen from the order dated 25.11.2008 passed by the Assessing Officer, Mumbai under section 143(3) of the Income Tax Act, 1961 (in short 'the Act'). 3. In this appeal, the short-point of appeal raised by the Revenue reads as under :- "i) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in directing the AO to treat income of Rs. 61,00,839/- from Capital Gains as against business income treated by the AO without considering the concrete reasoning given by him in body of order. ii) the appellant prays that the order the CIT(A) on the above ground be reversed and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess Income'. 5. Before the CIT(A), assessee assailed the order of CIT(A) on facts and in law. Firstly, assessee pointed out that since the past, income from purchase and sale of shares has been declared by assessee as investment income liable to be taxed as 'Capital Gains' and such a position was also accepted in assessment finalised u/s 143(3) of the Act for the Assessment Year 2003-04. Secondly, assessee pointed out that she has been reflecting the shares and securities as part of investment in the Balance-sheet since earlier years. Even on the issue of the number of scrips and the volume of transactions, assessee pointed out that the same was not too huge to be considered as 'Business Income'. The CIT(A) not only analysed the factual ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant stands at Rs. 1,60,36,634/- at the end of the year and the shares / debentures have been disclosed as investments in the Balance Sheet. The appellant has been disclosing the shares held as investment in the earlier years. The AO has also assessed it as investment in AY.2003-04 in an order u/s. 143(3). Looking at the Balance Sheet it can also be seen that the appellant is an investor with substantial investments of Rs. 49,00,000/- in SBI Relief Bonds. The appellant is a house wife and does not have any business or professional engagement. The appellant had relied on the decision of jurisdictional ITAT in the case of Gopal Purohit in ITA No 4854/M/2008 dated 10.2.2009 wherein similar circumstances the tribunal has allowed the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine months also. Before us, the learned representative for the assessee had furnished a Chart showing the working of average holding period which works out to 156 days. In this background, the CIT(A) came to conclude that it is not a case where any day-to-day transactions have been carried out in the shares and securities which could be termed as a 'Business activity'. It has also been brought out by the CIT(A) that the investments have been made out of assessee's own Capital and family owned funds and there is no borrowing. More importantly, the CIT(A) noted that the assessee has been accepted as an investor in an assessment u/s 143(3) of the Act for Assessment Year 2003-04 also. For all the said reasons, the CIT(A) found it expedient to u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). Thus, we hereby affirm the order of CIT(A) and accordingly, Revenue fails in its appeal for Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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