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2019 (1) TMI 1358 - ITAT INDORESale of shares - Capital gain or busniss gain - company’s main object is of trading in equity shares and NSE derivatives - Held that:- Hon’ble jurisdictional High Court in the case of CIT V/s Commissioner of Income Tax Vs Om Prakash Suri [2013 (12) TMI 418 - MADHYA PRADESH HIGH COURT] wherein held that “a tax payer can use two portfolios which are to be treated as capital assets and trading portfolio comprising the securities which are to be treated as capital assets and portfolio comprising of stock in trade has to be treated as trade assets”. Gain from sale of equity shares of M/s. FCS Software Ltd at ₹ 1,09,16,692/- has been rightly claimed by the assessee as Long Term Capital Gain exempt u/s 10(38) as the assessee is consistently carrying out such transactions of purchase and sale and equity shares under the investment portfolio and separate details are maintained for the trading of shares on behalf of the customers. We therefore find no merit in the appeal raised by the revenue and the same deserves to be dismissed for the Assessment Year 2010-11. Now we take up the appeal raised by the Revenue for the Assessment Year 2011-12. Both the parties have not disputed the fact that the issues raised for Assessment Year 2011-12 is similar to that of 2010-11 which relates to taxability of capital gain from sale of equity shares of M/s. FCS Software Ltd. As the facts and as issues remain the same, we are of the considered opinion that the decision given by us in preceding para while adjudicating the issue for 2010-11 in the case of assessee shall apply mutatis mutandis on the appeal for Assessment Year 2011-12. Therefore no interference is called for in the finding of CIT(A) holding that the gain has been rightly shown by the assessee as Short Term Capital Gain and is not taxable as business profit. The appeal raised by the revenue for Assessment Year 2011-12 also deserves to be dismissed.
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