TMI Blog2018 (11) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... n City Parks Pvt ltd., the Tribunal noted that the shares were gifted by his father who himself had held the shares as investment. The company was unlisted Pvt Ltd Company. There was no material on record to suggest that the assessee had entered into the business venture in the process. Likewise in the second transaction also, the Tribunal noted that the Revenue has, in the preceding and succeeding assessment years, accepted, the sale of shares by the assessee as investment and the proceed was treated as capital gain. With respect to HCL Technologies, when the assessee sold the bonus shares in the later year, the Revenue treated the gain as capital gain. We are broadly in agreement with the view of the Tribunal. There is no material to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der', rather than as an investor i.e transaction in the shares of HCL Technologies Ltd is a business transaction? iv. Whether on the facts and circumstances of the case and in law, without prejudice to the above ground, the Hon'ble ITAT was justified in not upholding the stand of the Assessing Officer that the motive for carrying out the aforesaid set of transaction in the shares of HCL Technologies Ltd., was to incur loss on account of bonus striping and then set off such loss against the long term capital gain accruing to the assessee on sale of shares of City Park Pvt Ltd with a motive to evade tax? Learned counsel for the Revenue mainly concentrated on Questions (i) and (iii) for our consideration. 2. Brief facts are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (rounded off) which the assessee claimed as short term capital loss. 2.3. The assessee claimed to set off the capital gain earned in the process of sale of shares of City Part Pvt Ltd against the capital loss suffered by him in the process of sale of the shares of HCL Technologies. The Revenue objected to this claim of the assessee mainly on the ground that both the transactions were in the nature of assessee's business transactions. The objection of the Revenue was that the assessee had entered into the transactions of purchase and sale of shares of HCL Technologies in order to avoid tax liability. Revenue contends that the decision of the Supreme Court in the case of Commissioner of Income Tax Vs. Walfort Shares Stock Brokers ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the opinion that the Revenue failed to bring on record any material to show that the assessee was actively trading in shares. 4. With respect to the assessee's transaction of purchase and sale of HCL Technologies, the Tribunal referred to the decision of the Supreme Court in the case of Walfort Share Stock Brokers (P) Ltd (supra) and also took into consideration the legislative changes in Section 94 of the Income Tax Act which were discussed in the said judgment and held that the transaction in question was not hit by the said provision. 5. With respect to the Revenue's contention that the transaction was in the nature of business, the Tribunal rejected the same inter alia observing that whether a particular transaction i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of sale of shares in City Parks Pvt ltd., the Tribunal noted that the shares were gifted by his father who himself had held the shares as investment. The company was unlisted Pvt Ltd Company. There was no material on record to suggest that the assessee had entered into the business venture in the process. Likewise in the second transaction also, the Tribunal noted that the Revenue has, in the preceding and succeeding assessment years, accepted, the sale of shares by the assessee as investment and the proceed was treated as capital gain. With respect to HCL Technologies, when the assessee sold the bonus shares in the later year, the Revenue treated the gain as capital gain. We are broadly in agreement with the view of the Tribunal. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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