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2022 (12) TMI 113 - AT - Income TaxCorrect head of income - gain on sale of shares - short term capital gain or business income of the assessee - frequency of transactions and the period of holding - HELD THAT:- The only basis on which the ld. CIT(A) has confirmed the action of the Assessing Officer in treating the STCG as business income is the frequency of transactions and the period of holding which in our opinion is not the determinating factor to decide such issue. We have also examined the balance sheet filed by the assessee for the year and observe that the two portfolios maintained by the assessee were clearly mentioned separately, one under the head stock-in-trade and the other under the head “current investments”. As examined the details of the shares held by the assessee as investment and stock-in-trade. During the year, we do not find any change of facts and circumstances over the preceding or succeeding financial years and, therefore, in our considered opinion/view, the revenue cannot be allowed to disturb the position which has been accepted by the revenue in the case of the assessee in the earlier and subsequent years. Thus respectfully following the decision of Radhasoami Satsang [1991 (11) TMI 2 - SUPREME COURT] we set aside the order of the ld. CIT(A) and direct the Assessing Officer to treat the sum as Short Term Capital Gain - Appeal of the assessee is allowed.
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