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TMI Blog2012 (12) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... come from dividend, claimed as exempted. The A.O. further noted that all the receipts in the capital account are arising out of transactions in shares and securities but in the computation of income, the assessee bifurcated the credit entries and offered the profits/loss on the sale of shares as short term/long term capital gains. The A.O. summarised the share transactions pertaining to short term capital gain and long tem capital gain as under:- No. of shares bought and sold 100930 Purchase amount Rs. 1,75,27,090/- Sales amount Rs. 3,36,92,261/- Gain Rs. 1,61,65,171/- Long term capital gains No. of shares bought and sold 9000 Purchase amount Rs. 35,11,490.26 Sales amount Rs. 44,01,604.41 Gain Rs. 8, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. On appeal, the ld. CIT(A) following the decision of Mumbai Bench of the Tribunal in the case of Gopal Purohit vs. JCIT, 29 SOT 117 confirmed by the Hon'ble jurisdictional High Court vide judgment dtd. 6-1-2010 and factual findings, directed the A.O. to accept the claim of the appellant by accepting the short term/long term capital gain as admitted by the appellant. 4. Being aggrieved by the order of the ld. CIT(A), the Revenue is in appeal before us taking the following grounds of appeal:- "1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in directing the A.O. to accept the claim of Short Term Capital Gain and Long Term Capital Gains on profit arriving from purchase & sale of shares instead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- "....It is true that the appellant has earned business income on non delivery based transactions for A.Y.2004-2005 but that does not mean that income earned on sale of shares held as investment can be taxed as business income in the subsequent years. The appellant has made clear distinction between delivery based and non delivery based transactions and admitted income accordingly and except for A.Y.2004-2005, the appellant did not indulge in any non delivery based share transactions. As contended by the representative, even shares purchased as investment had to be sold within a short time depending on the market conditions. Thus, the sale of shares was only with a view to protect the amount invested by the appellant which would not conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econd appeal filed by the assessee, the Tribunal in ITA No. 5238/Mum/2009 for A.Y. 2006-07 dtd. 20-12- 2010, after considering the totality of the facts and circumstances of the case held that the transactions of sale and purchase of the shares by the assessee was in the nature of investment in shares and not trading in shares. The said order of the Tribunal has been upheld by the Hon'ble jurisdictional High Court (supra). We also find that in subsequent assessment year i.e. in 2008-09, the Tribunal following the above decisions dismissed the Revenue's appeal on the same issue. In the absence of any distinguishing feature brought on record by the Revenue, we respectfully following the consistent view of the Tribunal upheld by the Hon'ble ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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