TMI Blog2014 (5) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... be determinative or conclusive of the matter - the overall tests noticed and applied by the Tribunal cannot be faulted – Decided against Revenue. - ITA No. 580/2012 - - - Dated:- 17-4-2014 - S. Ravindra Bhat And R. V. Easwar,JJ. For the Appellants : Mr. Rohit Madan, Sr. Standing Counsel With Mr. P. Roy Choudhry And Mr. Akash Vajpai, Advs. For the Respondents : Mr. Sheel Vardhan For. Mr. Salil Aggarwal, Adv. ORDER 1. The Revenue is aggrieved by an order of the Income Tax Appellate Tribunal (ITAT) dated 23.03.2012 by which its appeal directed against the CIT (A)'s order was rejected. It urges that the treatment of Rs.4,89,64,389/- as short term capital gain instead of its treatment as business income at the hands o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it ignored the fact that there was negligible or insignificant income other than the amount reported as short term capital gain. Counsel also submitted that the purchase as a percentage to sell was almost 80% and that the consistencies of all the transactions, given the other factors, pointed to the activity being trading and not investment. 5. The ITAT by its impugned order while confirming the CIT (A)'s order took note of previous binding decisions including the judgment of the Supreme Court in CIT v. H. Holck Larsen, 160 ITR 67. Circular No.4/2007 dated 15.06.2007 too was taken into consideration which indicated the broad parameters upon which the assessing authority had to consider such matters. Thereafter, the Tribunal in parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an investor was not disturbed by the Revenue. We find that Ld. First Appellate Authority has examined the issue from all possible angles in its lucid and well reasoned order. It does not call for any interference at our end. 8. The next of the grievance raised by the revenue is that Ld. CIT (A) has erred in dropping the proceeding u/s 271A and 271B of the Act. These are the consequential issues with the main issue because if assessee is not trading in shares then it is not supposed to maintain books of accounts and for that penalty will not be imposable upon the assessee. As such Ld. First Appellate Authority has rightly held that since assessee is an investor it is not mandatory for the assessee to maintain books of accounts, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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