9911796707
TMI Blog2014 (7) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... A)') erred in confirming the action of the Income Tax Officer-11(2)(1), Mumbai ('AO') of treating the income of Rs. 36,775/- arising from sale of shares held for short term, out of total short term capital gains of Rs. 2,44,550 computed by the appellant, as income from speculative transaction. (b) The learned CIT(A) erred in confirming the action of the AO of treating the income of Rs. 2,08,775 arising from sale of shares held for short term, out of total short term capital gains of Rs. 2,44,550 computed by the appellant, as business income. (c) Without prejudice to the above, the learned CIT(A) erred in ignoring the appellant's contention that the expenses (including securities transaction tax) incurred in respect of purchase and sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, discarded the claim of the assessee regarding leviability of short term capital gain on a sum of Rs. 36,775/- which itself was shown as speculative income by the assessee and balance amount of Rs. 2,35,126/- was added to the income of the assessee under the head "business or profession". 3. Aggrieved, assessee filed an appeal before Ld. CIT(A). After considering the submissions of the assessee it was observed by Ld. CIT(A) that the assessee had borrowed funds of Rs. 30.00 lacs from her husband to be invested in shares transacted during the year. It was also observed that assessee has carried out intra-day share transactions on nine occasions during the year and also earned speculative profit of Rs. 36,775/-. Thus, Ld. CIT(A) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar transaction of sale and purchase of shares upon which assessee has earned long term capital gain and discarded the claim in respect of transactions which have given rise to short term capital gain. In this regard Ld. AR referred to the decision of Mumbai ITAT in the case of DCIT vs. Smt. Monica Bimal Shah, 16 taxmann.com 164 (Mum), wherein it was held that when Department had accepted that some of shares were purchased and held by assessee as "investment" while accepting decision of Commissioner (Appeals) allowing claim of the assessee for long term capital gain arising from sale thereof, there was no justification for them to contend that assessee had purchased and held other shares as stock- in- trade merely because they were sold wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed at page 37 and 38 of the paper book. The assessee has also submitted the summary of the transactions , particulars of which are as under: S.No. Particulars Units. 1. Total No. of transactions during the year 59 2. Average transactions per month 4.92 3. No of scrips traded during the year 48 4. No. of scrips where there was more than 1 transaction during the year 9 5. Average holding period (excluding intra day transactions ( in days) 22.375 6. Average holding period (Including LTCG) (in days) 29.37 7. No. of Intra day transactions 9 8. No. of transactions where scrip was held for less than 30 days 41 9. No. of transaction where scrip was held for more than 30 days 9 10. Total short term capital gains other than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed having become infructuous. 10. So far as it relates to grievance expressed in Ground No.2, I observe that Ld. CIT(A) was not right in holding that provisions of section 44AA & 44AB of the Act were applicable, as such decision by Ld. CIT(A) will be premature as the same will be required to be adjudicated only at the time of levy of penalty under section 271A & 271B of the Act, which stage in the assessment order is premature. Therefore, I vacate those findings of Ld. CIT(A) and hold that question regarding violation of the provisions of section 44AA and 44AB of the Act which entail leviability or otherwise of penalty under section 271A & 271B of the Act can be examined only during the course of imposition of penalties under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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