2023 (5) TMI 851 - AT - Income Tax

Exemption u/s.10(38) - income from capital gains from purchase and sale of shares - sale of equity shares - assessee has shifted from the IPOs - decision final and binding on a Single Member Bench of the Tribunal - HELD THAT:- There is no dispute that the assessee earns her income from transaction in shares. Just because the assessee has shifted from the IPOs and has made a purchase of the shares in M/s Panchshul Marketing Ltd., would not shift the head of income from “capital gains” to the “Adventure in the nature of trade”, insofar as the assessee is an investor in the shares and is not in the business of dealing in shares. This being so, the decision relied on by the DR would no more survive for consideration.

The revenue did not challenge the factual finding of the coordinate bench of the Tribunal in the case of Deepansu Mohapatra [2021 (12) TMI 1425 - ITAT CUTTACK] in regard to the claim of deduction/s.10(38) of the Act. By not challenging the merits of the addition, the revenue has accepted the decision (supra).

In these circumstances, the decision of the coordinate bench of the Tribunal on merits in the case of Deepansu Mohapatra (supra) have become final and binding on a Single Member Bench of the Tribunal as the said decision has been rendered by a Division Bench of this Tribunal.

Respectfully following the decision of the coordinate bench of the Tribunal in the case of Deepansu Mohapatra (supra), which has also been affirmed by the Hon’ble Jurisdictional High Court of Orissa [2023 (2) TMI 392 - ORISSA HIGH COURT] in the appeal filed by the revenue, the addition as made by the AO and as confirmed by the CIT(A) in respect of the claim of exemption u/s.10(38) of the Act in respect of sale of shares of M/s Kailash Auto, stands deleted. Decided in favour of assessee.