TMI Blog2012 (11) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... earned CIT (A) has erred in deleting the addition of Rs. 81,96,555/- treated it as business income instead of short term capital gain by the A.O. 2. The appellant raves leave to add, alter or amend any ground of appeal raised above at the time of the hearing. 2. At the outset, it was pleaded by the learned AR that the issue raised by the revenue in the present appeal is similar to the issue raised by the revenue in respect of Assessment Year 2005-06. He submitted that the appeal filed by the department on this issue was decided by this Tribunal vide order dated 30th May, 2011 in ITA No.666/Del/2010. He has produced before us copy of the said order by which the Tribunal has decided this appeal of the revenue in favour of the assessee and revenue s appeal has been dismissed. A copy of the said order was also given to the learned DR. 3. On the other hand, the learned DR relied upon the order passed by the Assessing Officer. 4. We have heard both the parties and their contentions have carefully been considered. It is seen that while deciding the issue in favour of the assessee learned CIT (A) has followed the order of the CIT (A) passed in the case of the assessee for Assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79,73,293.15/- held by the company in shares/ securities of other bodies corporate converted into investment w.e.f. 1.04.2004, details of these shares are as under: - S.No. Name of the Company Quantity Amount 1. Associated Cement Ltd. 2000 509300/- 2. Balaji Tele Films Ltd. 5000 362420/- 3. Balrampur Chini Mills Ltd. 1000 286250/- 4. Biocon Ltd. 1250 393750/- 5. Gas Authority of India 3874 825549/- 6. HDFC Ltd. 400 245496/- 7. Morgan Stanlay 5000 30000/- 8. Nestle India Ltd. 500 297140/- 9. Radico Khaitan Ltd. 5000 480525/- 10. Reliance Industries 1000 305101/- 11. Sun Pharma Ltd. 450 293175/- 12. State Bank of India 500 289885/- 13. Tata Power Co. Ltd. 1250 471437/- 14. TV Today Network Ltd. 2500 237500/- 15. Tata Tele Services Ltd. 20000 324000/- 16. Talbros Automotive Components Ltd. 82143 2063843/- 17. VSNL Ltd. 1600 285680/- 18. Wipro Ltd. 200 272240/- Total 133667 7973293/- 3. The value of acquisition of these shares was taken to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned case of DCIT Vs. M/s Chaudhary Associates are identical. The findings of fact recorded by ld. CIT(A) in the present case have not been controverted by the revenue. In this view of the position, the ratio laid down in the aforementioned decision will be applicable to the present case also. For the sake of completeness the relevant portion of the said order is reproduced below: - 2. The issue raised is that Ld. Commissioner of Income Tax (Appeals) erred in directing to treat the assessee as investor in shares as against treatment by the Assessing Officer of assessee as a trade. 3. The assessee in this case has declared income from long term /short term capital gains and income from business and profession. The Assessing Officer in this case observed that assessee was holding shares mainly of group companies including of Dabur India Ltd. as investment since long back. The assessee was also engaged in purchase and sale of shares and mutual funds mostly of Blue Chip Companies as stock-in-trade. During the year under consideration, assessee has transferred the shares of certain company as held in stock-in-trade upto 31.3.2004 at cost price as on 1.4.2004 as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fits for that year. The market value as on 31st of March, 2004 has been taken as the cost of acquisition of these shares and the difference between cost of acquisition and the sale price has been offered for taxation as income from short term capital gain. 5.1 Ld. Commissioner of Income Tax (Appeals) further referred to ITAT, Lucknow Bench in the case of M/s Sarnath Infrastructure Pvt. Ltd. reported in 120 TTJ 216. Considering the same the Ld. Commissioner of Income Tax (Appeals) concluded as under:- Adverting back to the facts of the case, it is observed that the appellant was trading in shares regularly for the last many years. During these years the company was trading in shares as well as having an investment portfolio. The separate books of account were maintained for trading as well as investment portfolio. The company decided to convert the shares held in trading portfolio into investments. the matte was put before the Board in the Annual General Meeting to convert the shares from stock in trade to investments. This resolution was approved by the Board and the market value as on 31st of March, 2004 was taken as the cost of acquisition of these shares were transferred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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