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TMI Blog2018 (9) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... m sale of shares under the head 'short term capital gain' in the facts and circumstances of the case. 3. After hearing both the parties and on perusal of record including the material as available before us and the relevant orders of ITAT, Kolkata as relied on by the ld.AR of assessee, we find that the issue involved in this appeal is in favour of assesse against the revenue. The appellant Revenue has been accepting the income derived by assesse from sale of shares by holding under the investment portfolio as short term capital gain as discussed by the CIT-A in his order at page-3 and as detailed therein in tabular form. It is noted that from A.Ys 2005-06 to 2008-09 & A.Y 2010-11, the assessment were completed under issuance of intimation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils in the assessment order as well as in the written submission of the appellant as quoted hereinabove. Therefore, same is not discussed again to relieve this order from repetition. As it appears that the appellant company has been showing all shares under 'investment column' in preceding and succeeding assessment years since A.y. 2006-07. It never showed 'trading in shares' or 'opening or closing stock of shares' in its books of accounts. The appellant company has always shown the net income from sale of shares under the head STCG or L TCG depending upon the period of holding of individual share. Excepting this year, in all other earlier and later assessment years (some of them were completed u/s. 143(3) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d loss in as many as 19 transactions. So, AO's findings are not fully correct. The other finding of the AO was that the appellant held those shares for few days before sales. However, from the chart submitted by the Ld. AR of the appellant it can be seen that in as many as 13 transactions, the appellant had held the shares for the periods in between 54 to 361 days and earned STCG. Another argument of the AO was that the shares purchased in the relevant year were sold during that year itself. However, AO's chart suggests that in 27 numbers of transactions, shares purchased in the previous year were sold in this year. Further, the AO has not treated the profit from similar type of transactions as business income where shares were hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdictional Tribunal in the cases of Umesh Hiranand Chabbalni [ ITA-561/Kol/2012]. Narin Prasad Dalmia [ 39 CCH 0035 (kol)], Merlin Holdings (P) Ltd. [ 29 CCH 776], I am of the considered opinion that the income of Rs. 1,25,78,656/- derived by the appellant from share transactions is to be treated as Short Term Capital Gain (STCG). There ought to be uniformity in treatment and consistently when the facts and circumstances are identical. Hence, the AO is directed to treat the income of Rs. 1,25,78,656/- as STCG. This ground of appeal is therefore, allowed. " 4. Before us the ld. AR placed his reliance on the order dt. 13-06- 2018 passed by this Tribunal in the case of DPJ Vinoyog Pvt. Ltd Vs. DCIT, Cir-9, Kolkata passed in ITA No. 1003/Kol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lds these shares and securities as an 'investment' or as a 'stock in trade'. This intention can be judged by the entry made by the assessee in his books of accounts, that is, the treatment in the 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 trade in shares but to treat them as an investment. 7. We also note that the CBDT has issued Circular No.6 of 2016 wherein it has been provided as follows: "2.....However, this stand, once taken by the assessee in a particular assessment year shall remain applicable in subsequent assessment years also and the taxp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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