9911796707
TMI Blog2018 (9) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... s to deal in investment and not to trade in shares, therefore, we are of the view that assessee’s income i.e Short term Capital Gain by way of sale of investment should be assessed under the head ‘capital gain’ instead of ‘business income’. Therefore, we direct the Assessing Officer to treat the assessee as an investor and assess the income under the head ‘Short term Capital Gain’. - Decided against revenue - I.T.A No. 14/Kol/2016 - - - Dated:- 12-9-2018 - Shri M. Balaganesh, Accountant Member And Shri S.S. Viswanethra Ravi, Judicial Member For The Appellant : Shri A. Bhattacharya, Addl. CIT, ld. Sr.DR For The Respondent : Shri A.K. Tulsyan, FCA, ld.AR ORDER Shri S.S. Viswanethra Ravi, JM: This appeal by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital gain. The ld. AR placed on record the copy of assessments from A.Ys 2007- 08, 2011-12 to A.Y 20016-17, pages 1-20 of the paper book and copy of intimation issued u/s. 143(1) of the Act for the A.Ys 2011-12 2016-17 and argued that the Revenue has been consistently accepting the profit on sale of shares/investment as capital gain under scrutiny proceedings. The ld. AR pointed out the filing of audited balance sheets as on 01.03.08 to 31.03.2016, for the A.Ys 2007-08 to 2016-17, pages 21-81 of the paper book. Before us the ld. AR of assesse filed detailed evidences in respect of claim by way of paper book filed for the A.Y 2010-11. On perusal of the same, we find force in the arguments/submissions of the ld.AR. Relevant portion of order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be assessed as business income merely for the reason that quantum was high, numbers of transactions were high and the appellant made good profit. The principle of consistency is to be maintained as held in various judicial pronouncements referred hereinabove. In making the assessment, the AO heavily relied on the decisions of the Hon'ble AP High Court in the case of P.V. S. Raju Others. The facts of that case were not similar to that of appellant's case, as elaborately discussed in the submission of the Ld. AR as stated hereinabove, 2.3. The AO in his chart, mentioned total 108 transactions in shares in support of his arguments that the appellant company purchased shares when the price went down and sold the same when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in shares. So in one hand he treated the transactions in shares as investment for the purpose of application of section 14A and other hand, he treated the profit derived from same transactions as business income. 25. The appellant company has always returned the income from sale of its investment in shares under the head capital gain in earlier years as well as in the later years and such income have been consistently assessed in the hands of the appellant both under section 143(3) and 143(1) of the Act under the head capital gain, LTCG or STCG, depending upon the holding. In the light of the facts that similar transactions were accepted as capital gains by the Department not only in the earlier years but also in the later years, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me from business the assessee should demonstrate the intention and treatment in that books of accounts, whether he holds these shares and securities as an investment or as a stock-in-trade . The intention can be judged by the entry made by the assessee in his books of accounts, i.e., the treatment in his books of accounts of the assessee. We note that, since, the assessee has shown the investment in its books of accounts under the head investment and not under the head stock in trade , therefore, the intention of the assessee is not to treat them business income but to treat them as an investment. We find strength of the above discussion in the judgment of Hon ble ITAT, Kolkata in the case of M/s Divyan Tie Up ITA No.164/Kol/2016 Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has shown shares under the head investment, therefore, the intention of the assessee is not to trade in shares but to deal in shares as an investor. 11. Therefore, considering the facts and circumstances of the assessee s case under consideration and the factual position discussed above, we note that assessee is having only one portfolio that is of investment and is consistently following to declare capital gain or loss on sale on investment, dividend is earned on investment and there is not stock in trade portfolio. Besides, the assessee is consistently valuing investment at cost and does not claim the diminution in valuing of investment. We have noted the intention of the assessee that the Board of Directors of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
