9911796707
TMI Blog2012 (8) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... law and as per facts of the case going to prejudice the appellant. 2) That the ld. CIT (A) is not justified in upholding the action of assessing officer with regard to the assessment proceedings on the ground of placing reliance on various judgments whereas as per the Aseessee the applicability and reliance of the judgment is to be held in the context of the bases of conclusion under its independent facts and circumstances. Thus a mis-application, mis-construction and mis-interpretation of judgments. 3) That the ld. CIT (A) is not justified in upholding the findings of A.O. on account of the appellant not being holding the shares as a investment and treating the shares investment as a trading transactions and consequently treating the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence from its records as to whether it has maintained any distinction between those shares which are its stock-in-trade and those which are held by way of investment. From the reading of above referred case it clarifies that this judgment is also not hold bad at law and against the appellant as he has held the shares as a investment in separate records and also shown in his balance sheet. 7) In the light of following important judgments it is justified that it is not necessary in all circumstances profit from shares should always be treated as business income instead of long term or short term capital gain. i) Nagindas P. Seth (HUF) vs. ACIT (ITAT Mumbai) :- It was held that assessee transacted in 158 shares should not be the so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the shares for less than 3 months and the overall profit earned has also been small clearly suggesting that the asessee had been selling the shares motivated by profit. Even an investor sometimes may sell the shares after holding for a short period in order to reshuffle the portfolio when a particular share is not doing well or in case of exceptional appreciation. However we make it clear that in case of any part of the gain is in respect of sale of shares appearing in the opening balance which has been treated as investment in the earlier year, it has to be treated as capital gain. v) Delhi Bench of ITAT M/s Datavision System (P) Ltd., ITA No.5957/Del/2010 31st Mar, 2011. It was held that in the absence of any material to prove that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 stated that he makes sales and purchases of shares on the advice of ICICI direct.com to earn profit so that he can pay off his loans. However, the counsel for the assessee kept on insisting that the assesse was an investor and he has used the word 'profit' in layman's language. The assessee produced the books of account and the demat account statement. The AO observed that the assessee was holding some shares as investment for which he is claiming long-term capital gain. Besides this he was trading in shares. In the preceding year, the assessee had claimed the investment in shares as well as long term capital gains and trading of shares alongwith poultry business. The assessee did not file the audit report for share business during the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shares are not held as investment. Therefore, this is wrong to says as argued by the Ld. AR that the assessee had agreed about the trading of shares. The Ld. counsel for the assessee further invited our attention to PB 39 &40 which are two charts which pertain to trading of shares and investment in shares. At PB-39, there is opening value of shares amounting to Rs.2413428/- as on 01.04.2004 of which assessee has made sales of Rs.2559129/- and earned trading profit in the dealing of such shares at Rs.182390/-. Therefore, the findings of the AO and the arguments of the Ld. DR and the statement of the assessee in this regard are not disputed. But the said findings of the AO or the ld. CIT(A) and arguments of the Ld. DR and statement of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
