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2013 (5) TMI 391 - AT - Income TaxTaxability of Income – Whether LTCG or STCG? - Whether the amount of Rs. 17,04,884/- representing the profit on sale of share is taxable under the head LTCG and is consequently exempt u/s 10(38) of the I.T? - Held that:- Assessee had shown STCG at Rs. 1,24,38,554/- on sale of shares of twelve scripts even though number of transactions undertaken were huge and in case of LTCG shown at Rs. 17,04,884/- was on account of sale of shares of four scripts. The learned CIT(A) has treated the income from the sale of shares which were held for less than a month to be a business income and other shares, which were held for more than 30 days as income from capital gains. From the records it is noticed that so far as shares shown in LTCG are concerned, the average period of holding is around 549 days and number of transactions are also less, therefore, income from sale of such shares has rightly been held to be taxable as LTCG. Whether the amount of Rs. 1,24,38,554/- representing profit on sale of shares transactions is taxable STCG, within the meaning of Section 2(13) of the I.T. Act, 1961? – Held that:- it is seen that purchase of shares has been shown as investment in the books of account and the same has been accepted such in the past. All the transactions are delivery based transactions and the assessee has not undertaken any derivative or speculative transactions. If the period of holding of shares under the head of STCG held for less than 30 days is removed, then the average period of holding in most of the shares are more than 180 days. The other important aspect is that in the earlier assessment year i.e. A.Y. 2006-07 similar nature of transactions has been held to be income from STCG and LTCG by the department under scrutiny proceedings. There is no change in facts and circumstances of the case in this year. In view of these facts, the decisions of Hon'ble Bombay High Court in the case of CIT vs Gopal Purohit [2010 (1) TMI 7 - BOMBAY HIGH COURT] gets squarely attracted. Thus, no reason to deviate from the conclusions drawn by the CIT(A) and accordingly, grounds raised by the department, are dismissed.
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