TMI Blog2012 (7) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... missed. - ITA No.801/Mum/2010 - - - Dated:- 25-5-2012 - SHRI J. SUDHAKAR REDDY, SHRI R.S. PADVEKAR, JJ. Appellant by: Shri Pavan Ved Respondent-revenue by: Shri Pradeep N. Kapasi O R D E R PER R.S. PADVEKAR, JM: This appeal is filed by the revenue challenging the impugned order of the Ld. CIT (A)-24, Mumbai dated 17.11.2009 for the A.Y. 2006-07. The revenue has taken the following grounds: 1.(a) The ld. CIT (A), on the facts and in the circumstances of the case and in law, erred in deleting the addition of ₹ 4,30,28,540/- made by the AO as business income as against STCG shown by the assessee. (b) The ld. CIT (A), on the facts and in the circumstances of the case and in law, erred in not appreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f shares has been consistently shown and taxed as capital gains in the past assessment years. The above fact has been accepted by the Department in earlier years. iii) The assessee has earned a substantial dividend income of ₹ 1,04,71,095/- during the year. iv) Investment is always made in shares of quoted, reputed companies, based on sound records. v) Funds used for the purpose of investment is owned funds and not borrowed funds. vi) Delivery of such shares is always taken. Shares are held in De-mat account before the same being sold. vii) The funds are not purchased for immediate sell of but are kept for reasonably long periods. The average period of holding is at least 160 days in case of short capital gains. vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted by the A.O. We further find that in the A.Y. 2005-06, which is a immediate preceding year, the claim of the assessee was not accepted but when the matter reached before the Tribunal the Tribunal held in favour of the assessee. The operative part of the order of the Tribunal is as under: 3. We have considered the rival submissions and perused the relevant material on record. The assessee s Balance Sheet for the year under consideration has been placed at page 44 of the paper book. On perusal of which, it can be seen that the shares and other securities have been shown under the head Investment . Similarly for the immediately preceding year i.e. assessment year 2004-2005, the shares etc. were shown under the head Investment . In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f shares in total is at ₹ 20.08 crores and ₹ 10.59 crores in this year as against ₹ 8.23 crores and ₹ 5.84 crores in the immediately preceding year. It shows that the patter in which the shares were purchased and sold in this year is almost similar to that of the preceding year. The assessment order passed u/s.143(3) in relation to the assessee s version about the profit on sale of shares as liable to be taxed as short term capital gain and long term capital gain respectively. The learned Counsel has submitted that in the assessment years 2003-2004 and 2002-2003 also the profit on sale of shares held for less than one year was shown as Short term capital gain which was not disturbed by the Revenue, though the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned A.R. has also relied on another order passed by the Mumbai Bench of the Tribunal in Mrs. Amita A. Kapadia vs. ITO in ITA No.7054/Mum/07 for the same proposition. On the perusal of this order dated 3.2.2009, a copy of which has been made available by the learned AR., we find that the facts and circumstances are similar and even the assessment year is also the same i.e. assessment year 2005-2006. In this case also the department sought to change the treatment to be given to the profit on sale of shares from the short term capital gains to Profits and gains of business or profession , which was not allowed by the Tribunal. On the same pattern other orders have also been placed on record which have the same ratio decidendi. In view of this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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