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2017 (5) TMI 1048 - AT - Income TaxIncome from share transactions - capital gain or business income - Held that:- The Assessing Officer was not justified in changing the treatment of income of the appellant from short term capital gains to income from business. We uphold the order of the Ld.CIT(A) as far as treatment of aforesaid amount of ₹ 45,51,746/- as short term capital gain is concerned. As far as the balance amount of ₹ 45,761/- is concerned, the assessee has accepted its treatment as business income and there is no dispute before us regarding this amount. Hence, there is no need for us to adjudicate on the amount of ₹ 45,761/-. For statistical purposes, first ground of appeal is dismissed Income from undisclosed sources - amount shown as long term capital gain by assessee - Held that:- To substantiate his claim for long term capital gain on sale of shares; the assessee needs to furnish conclusive evidence that the shares (of “Reliance Capital”) claimed to have been sold are exactly the same shares (of “Reliance Capital”) having regard to corresponding distinctive numbers of shares. Convincing materials can also be presented with the help of corresponding order no., order time, trade no. and trade time. From the materials presently available before us, it is not possible to conclude whether the shares claimed to have been sold by the assessee are exactly the same as the shares claimed to have been purchased by the assessee – as far as assessee’s claim of long term capital gain is concerned. As relevant facts for adjudication of this issue are not presently available; in the fitness of things, we set aside the orders of Ld.CIT(A) and AO on this issue and restore the issue in dispute in the second ground of appeal to the file of the AO with the direction to pass a fresh order denovo after carrying out necessary inquiries and after providing opportunity to the assessee. For statistical purposes, the second ground of appeal is partly allowed.
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