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TMI Blog2014 (1) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... the head 'Profits and Gains from Business' as against under the head 'Capital Gains' as returned by the assessee. The learned CIT (A) failed to appreciate the contentions and arguments advanced by the assessee in proper perspective and proceeded to decide the issue on irrelevant considerations. 2. The learned CIT (A) failed to appreciate the nature of activities, past history, nature and period of holding of the securities in question, the circumstances under which the sale was effected and all such other relevant factors and totally failed to appreciate the facts of the case in the light of these factors. The learned CIT (A) further failed in appreciating CBDT Circular No.4 of 2007 dated 15th June 2007 in proper perspective. His reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer to treat long term capital gain as such and not to treat it as a business income." .......... ........ "24. Resultantly, the order of the Commissioner of Income-tax (Appeals) is set aside and the Assessing Officer is directed to treat the long term capital gain of Rs.3,59,14,921/- and short term capital gain of Rs.16,93,757/- respectively as such, and not to treat them as business income. 4. The above extracts contain the decision of the Tribunal in the context of the sale of shares and the sale of the units of the Mutual Funds. Thus, the gains on sale of both securities and the units are taxable under the head 'capital gains' and not under the head 'profits and gains from business or profession' as held by the revenue. Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e C'sIT(A) order. 6. We heard both the parties and perused the order of the revenue and documents filed before us. It is a fact that the CIT(A) did not have the benefit of the said judgment of the Bombay High court cited above and therefore the error or enhancement. In our opinion, CIT(A) fell in to error in assuming the jurisdiction of Rule 8D of the Income Tax Rules 1962 for the AY under consideration. Hence the enhancement has to go and therefore, the assessee wins on this issue. Now coming to the veracity and justifiability of the decision of the AO in resorting to the estimations and in not attending to the arguments of the assessee and also in not passing a speaking order in this regard, we are of the view that this issue must go to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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