TMI Blog2014 (7) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... an investor and that the income disclosed by him as STCG is in fact business income, assessing it as such - No meaningful purpose under the circumstances would be served in restoring the matter back to the file of the assessing authority - CIT(A) have not rendered any specific decision/findings with reference to the facts and circumstances – thus, the matter is remitted back to for fresh consideration – Decided in favour of Assessee. - I.T.A. No. 4916/Mum/2011 - - - Dated:- 30-6-2014 - Shri Sanjay Arora, AM And Dr. S. T. M. Pavalan, JM,JJ. For the Appellant : Shri Sanjukta Chowdhary Shri Pramod Kumar Parida For the Respondent : Shri Sambit Mishra ORDER Per Sanjay Arora, A. M.: This is an Appeal by the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding as to its time, so that the argument is misconstrued, and toward which we may refer to the decision by the apex court in CIT vs. Rajendra Prasad Moody [1978] 115 ITR 519 (SC) and Cheminvest Ltd. vs. ITO [2009] 121 ITD 318 (Del)(SB). The argument advanced before us is, thus, not applicable either on facts or in law. In fact, being impressed by the assessee s argument that the indirect expenditure incurred by it; the disallowance having been effected by the Assessing Officer (A.O.) only with reference to Rule 8D (2)(iii), is itself below the disallowance made, the ld. CIT(A) restricted the same to ₹ 2,51,114/- (refer para 1.2 of the impugned order). Under the circumstances, we find no infirmity therein, and uphold the same. We deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h cannot be subjected to a strait jacket formula. However, in our view, there is a lot of difference between stock investments undertaken by any investor as a business or otherwise. Needless to mention here, if an investor invests in the stock market and waits for considerable time, in the absence of daily stock transactions, the same can be safely called as income from short term capital gains. On the other hand, if an investor has to be treated as a stock trader, then in such a case, he is bound to enter into transactions of the shares from day-to-day basis amongst other things. 8. If we apply our above reasoning qua the facts of the instant case, we are of the opinion that the criteria of determination of stock gains, i.e., examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions by the hon ble apex court; finally going on to hold that the assessee was not an investor and that the income disclosed by him as STCG is in fact business income, assessing it as such. His observations with regard to the transactions, read as under: 4.4 The assessee has transacted in more than 70 scrips and entered into more than 200 transactions. The perusal of the statement of short term capital gains reveal that in some of the scrips on which the assessee has earned short term capital gain, the transaction period is as low as one day. 7.2 The understanding of law, as brought out by the A.O. in the assessment order with reference to a host of decisions, pre-dominantly by the apex court, is in alignment with that expressed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning for the year under reference. 7.3 In view of the foregoing, no meaningful purpose under the circumstances would be served in restoring the matter back to the file of the assessing authority. The ld. CIT(A) having not rendered any specific decision/findings with reference to the facts and circumstances of the present case, we only consider it fit and proper that the matter is restored back to his file for deciding the assessee s appeal afresh in accordance with law after allowing the assessee a reasonable opportunity of being heard and to present its case before him. We decide accordingly. 8. In the result, the assessee s appeal is partly allowed for statistical purposes. Order pronounced in the open court on June 19, 2014 on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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