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2022 (6) TMI 935 - AT - Income TaxCorrect head of income - income arising from sale of shares - to be taxed under the head "capital gains" or "Income from business" - HELD THAT:- As the undisputed position that emerges is that the aforesaid transactions have been classified by the assessee in the Books of Accounts as investments. Despite the fact that the main object of the assessee was dealing in shares and securities, it is well settled position that the assessee was entitled to maintain separate portfolios i.e., one for investment and other one as trading assets. See GOPAL PUROHIT [2010 (1) TMI 7 - BOMBAY HIGH COURT]. CBDT Circular No. 6/2016 dated 29.02.2016, as relied upon by Ld. CIT(A), clearly provide that in respect of listed shares and securities held for a period of more than 12 months, if the assessee desires to treat the income arising thereof as capital gains, the same not be put to dispute by AO - This stand once taken by the assessee in a particular year shall remain applicable in subsequent years also and the taxpayer shall not be allowed to adopt a different/contrary stand in this regard in subsequent years. Considering the same, the adjudication of Ld. CIT(A), in this regard, could not be faulted with. As in the case of CIT V/s NSS Investments P. Ltd. (2005 (4) TMI 45 - MADRAS HIGH COURT] support the case of the assessee wherein Hon'ble Court dismissed revenue's appeal and held that where shares were never treated by assessee as stock-in-trade and they were held for earning dividend only then the profit on sale of shares in question was to be treated as capital gains instead of business income. Applicability of Sec. 47(v) with respect to transactions of CUBL - We find that Ld. CIT(A) has already verified the documentary evidences submitted by the assessee and thereafter, reached a conclusion that it was a case of transfer of asset by subsidiary company to holding company and therefore, the transaction would be out of purview of capital gain in terms of Sec. 47(v) - These facts remain uncontroverted before us. Upon perusal of assessee's financial statements, we find that the assessee is 100% subsidiary company of IEPL and this transaction was covered u/s. 47(v). This plea was taken by the assessee before Ld. AO which was not dealt with even in the remand proceedings. Therefore, the impugned order, in this regard, could not be faulted with. We order so.
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