Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2017 (2) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (2) TMI 847 - ITAT AHMEDABADNature of income - share transaction - business income or capital gain - Held that:- In principle ld.CIT(A) has accepted status of the assessee as investor also. It has also been explained that the assessee was maintaining two portfolios. There is no provision in the Income Tax Act which can authorize the authority to draw a line i.e. shares held less than 30 days would be treated as a business transaction. An assessee is either an investor or trader. His status cannot be changed on the basis of the transactions where shares were held below a particular number of days. There is no such provision in the Act. Thus, the ld.CIT(A) has erred in creating an artificial line between transactions. The Revenue has not challenged the finding of the CIT(A) qua treating the assessee as an investor. Therefore, we partly allow the appeal of the assessee and modify the order of the CIT(A). The transactions in respect of shares held by the assessee less than 30 days should also be treated as a transaction of investment. In other words, short term capital gain shown by the assessee is to be accepted. Disallowance in respect of expenditure relevant to the activity of shares and securities - Alternatively, it has been contended that the AO be directed to delete the disallowance or he may be directed to grant rebate under section 88E - Held that:- A perusal of the record shows that an application under section 154 of the Act was filed before the ld.CIT(A). Since this issue has already been relegated to the AO for readjudication and there is no specific finding at the end of the AO on this issue. Moreover, the order of the ld.CIT(A) based on an application under section 154 of the Act has not been challenged before the Tribunal, it became final. In view of this development, we are of the view that ends of justice would meet if we set aside this issue to the file of the AO for re-adjudication in accordance with law.
|