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2014 (2) TMI 366 - AT - Income TaxIncome from share trading - Business income or capital gains - Held that:- The assessee had been consistently trading in shares for the last 25 years and the income arising from F&O transactions and daily trading in shares had been reflected consistently as speculative business - In the case of deliver based transaction of sale and purchases of shares had been shown as capital gains i.e. LTCG ad STCG, depending upon the period of holding - If the balance sheet of the assessee is analysed, it reflects holidng of shares as investment (one portfolio) - The Department consistently had been accepting the claim of the assessee from long term capital gain - Relying upon the decision in The Commissioner of Income Tax Versus Gopal Purohit [2010 (1) TMI 7 - BOMBAY HIGH COURT] - Even when the doctrine of res judicata does not apply to income tax proceedings, where a issue has been decided consistently in earlier assessment years in particular manner, the same view should prevail in subsequent years unless there is a material change in facts. Relying upon the decision in Shantilal M Jain vs ACIT [2011 (4) TMI 42 - ITAT MUMBAI] - Despite large volume of shares transactions, the Assessing Officer cannot ignore the rule of consistency to treat the gains on sale of shares as STCG - The assessee made investment in shares with intention to earn dividend income on appreciation of price of shares - It cannot be said that the assessee was doing business - The assessee has hold the shares in his books as investor, was not having office or administrative set up, no interest was paid on the funds and there was not a single instance where the assessee squared up the transactions on the same without taking the delivery of shares. As per the Board Circular No. 4.2007 dated 15- 06-2007 - It is possible for a tax payer to have two portfolios namely, an Investment Portfolio, comprising of Securities, which are to be treated as capital assets and ‘Trading Portfolio’ comprising of stock in trade which are to be treated as trade assets - No single principle would be decisive and the fact has to be considered in entirety - Decided against Revenue.
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