TMI Blog2014 (7) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... erm capital gain which was claimed to be set off by the assessee against the brought forward short term capital loss and remaining short term capital gain was offered to tax - The same was accepted in the order passed under Section 143(3) - Revenue has not been able to show how the facts of the year under consideration are different than the preceding two years so as to justify the different view taken in this year - on the ground of consistency itself, the Revenue’s appeal is liable to be dismissed apart from the facts of the case as discussed by the CIT(A), which clearly show that the assessee was investor in shares and not trader – thus, there was no justification to interfere with the order of learned CIT(A) – Decided against Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the details of which is given at page 3 of the assessment order. He, therefore, submitted that the Assessing Officer has rightly arrived at the conclusion that the profit from sale of shares was in fact business income and not long term capital gain. 4. Learned counsel for the assessee, on the other hand, stated that the main business of the assessee is of running of chain of restaurants. The assessee s turnover from the restaurant business is more than ₹ 200 crores. That the assessee made the investment in shares in the year under consideration and in the preceding years. He referred to the assessment order of the immediately preceding two years i.e. AY 2005-06 as well as 2006-07 and pointed out that in both the years, in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing finding:- The appellant company is primarily engaged in the business of running chains of Restaurants as well trading in beverages and Ghee, with a turnover from this business being of the order of ₹ 200 crores. Compared to this, the activity of sale purchase of shares constituted about 10% of the turnover from the business of restaurants trading. Not only this, the frequency of the activity of sale purchase of shares by the appellant company during the year was about two transactions per week and the average holding period of the shares was about 325 days. Further the shares which have been sold during the year have been shown as Investments in the balance sheet of the appellant in the preceding years and the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imate dispute is the taxing of capital gain which arose from the sale of only two shares which were held for more than two years. Even in respect of short term capital gain, there were only one or two instances where shares were sold same day or within a few days, otherwise, as recorded by the CIT(A), the average holding is 325 days. That in the immediately preceding two years, under identical set of facts, in the order passed under Section 143(3), the Revenue had accepted the income/loss from short term or long term capital gain as disclosed by the assessee. It is not the case of the Revenue that the facts are different in the year under consideration. That from the computation of AY 2005-06, we find that there was long term capital loss a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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