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TMI Blog2019 (10) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly in view of the stand taken by the assessee and on the basis of computation of income filed by the assessee after providing adequate opportunity of being heard to the assessee. Issue decided in favour of the assessee for statistical purposes. - ITA No.3910/Del./2011, ITA No.3634/Del./2011 - - - Dated:- 1-10-2019 - Shri R.K. Panda, Accountant Member And Shri Kuldip Singh, Judicial Member For the Assessee : Shri M.P. Rastogi, Advocate For the Revenue : Shri J.K. Mishra, CIT DR ORDER PER KULDIP SINGH, JUDICIAL MEMBER : Present cross appeals filed by the assessee as well as by the Revenue are being disposed off by way of composite order to avoid repetition of discussion. 2. Appellant, ACIT, Circle 17 (1), New Delhi (hereinafter referred to as the Revenue ) by filing the present appeal being ITA No.3910/Del/2011, sought to set aside the impugned order dated 06.06.2011 passed by the Commissioner of Income - tax (Appeals)-XIX, New Delhi on the grounds inter alia that :- 1. On the facts and in the circumstances of the case ad in law, the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause the action is under challenge on facts and law having followed the Hon'ble Delhi High Court overlooking the facts of said case. 5. Because the action is under challenge on facts and law in making an addition of ₹ 7,54,488/- on account of STT paid ignoring the fact that the appellant already disallowed the expenses in Computation of Income. 4. Briefly stated the facts necessary for adjudication of the issue at hand are : Assessee filed return of income at ₹ 2,67,34,667/- by making tax at special rate under section 111A of the Income-tax Act, 1961 (for short the Act ). Assessee declared income from long term/short term capital gains and income from business and profession. Assessee also claimed loss on speculative/derivative transactions. Assessee has claimed special rate of tax prescribed u/s 111A of the Act @ 10% of the gain qua the short-term capital gain of ₹ 2,75,11,065/-. Declining the contentions raised by the assessee, Assessing Officer (AO) made addition of ₹ 2,75,11,065/- due to non-furnishing of explanation sought for by the AO and by following reasons recorded in the assessment order passed for AYs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority. 11. Coordinate Bench of the Tribunal determined the issue in controversy in favour of the assessee in assessee s own case in AY 2006-07 (supra) by returning following findings :- 25. Ground Nos. 1 and 2: Similar arguments have been adopted by the parties as advanced by them hereinabove on the issue of long term capital gain raised in the appeal preferred by the Revenue. The authorities below have treated the claimed short term capital gain of ₹ 6,23,34,129 accrued on disposal of shares invested for a short term period as business income. The assessee had also claimed benefit under sec. 111A of the Act on the said short term capital gain. 26. The assessee had furnished list of shares and the number of scripts involved as 170. It had claimed short term capital gain of ₹ 6,71,16,180 and loss of ₹ 47,82,051 thus the net gain was claimed at ₹ 6,23,34,129. The assessee had classified the gains into long term and short term, after taking into consideration the period of holding of shares. The Assessing Officer did not agree with the claim of the assessee on the basis that the number of shares and fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are not available to make them reach to a level to accumulate capital or because of some other allied reasons. 26.2 It is not the finding of the Assessing Officer or the Learned CIT(Appeals) that these shares were shown as stock in trade or the assessee was not correct in showing these shares as investment. We thus do not find infirmity in the claim of the assessee that the profit accrued on sale of these shares was short term capital gain and the assessee was eligible for claiming charging of the gain under the provisions laid down under sec. 111A of the Act. We thus while setting aside the orders of the authorities below in this regard direct the Assessing Officer to accept the claim of the assessee and allow the benefit of charging of the gain under sec. 111A of the Act. The ground Nos. 1 and 2 are accordingly allowed. 12. Following the decision rendered by coordinate Bench of the Tribunal for AY 2006-07 (supra) as per findings extracted herein before, we are of the considered view that the assessee is entitled for claiming/charging of gains under the provisions contained u/s 111A of the Act, consequently the issue is set aside to the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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