TMI Blog2015 (2) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... In fact, the order of the CIT (Appeals), in para 2.10 clearly records that the appellant had clarified that no additional evidence was filed during the appellate proceedings. Furthermore, a comparison of the details of the share transactions in question from the AO’s order and the CIT (Appeals) order would show that there is complete identity as to the details of the transactions i.e. the name of the companies, the duration of holding, date of purchase, date of sale etc. In fact, CIT (Appeals)’s order is a more elaborate analysis of some basic material. Furthermore, it was not pointed out during the course of the hearing as to what was the additional material or evidence reiterated before the CIT (Appeals) by the assessee, which necessitated the remand. we notice that the CIT (Appeals) had recorded that 29% of the transactions reported by the assessee could be treated as short term capital gain. In these circumstances, the remand directed by the ITAT is limited to enquiry on this aspect. - Decided in favour of assessee - ITA 520/2014 - - - Dated:- 2-2-2015 - MR. S. RAVINDRA BHAT AND MR. R.K.GAUBA , JJ. For the Appellant : Dr. Rakesh Gupta and Mr. Mukul Mathur, Advs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nus and split shares being received against original investments. Sir, it could have been well appreciated by the learned AO from the records made available before him that the appellant had consistently been declaring income in past and future years under the head LTCG/ STCG and also consistently reflecting the impugned investments in the financial statements under the head 'Investments' and valuing the same at 'cost price' unlike on 'cost price or market price which ever is less' as is done by a trader as, also mandated by the Accounting Standard released by the accounting apex body lCAI. Ex.-2-Some examples inter-alia of major scripts being bought and sold where the appellant earned LTCG of ₹ 1,97,93,968/- during the year and where the holding period was up to 1,151 days:- Sl Scripts Dt Purchase Cost Nos Dt Sale Sale Price LTCG Days 1 Thermax Ltd. 10/13/2003 33083 500 12/7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 Crompton Greaves 10/17/2003 67831 500 4/1/2006 525000 457169 897 14 Jindal Steel 7/29/2004 272000 50 1/11/2007 1059612 787612 896 15 Crompton Greaves 11/25/2003 70604 500 4/1/2006 525000 454396 858 16 Havell s India Ltd. 8/20/2004 142420 1000 11/7/2006 307891 165471 809 17 IVRCL Infra 10/20/2004 94279 1875 11/7/2006 641244 546965 748 18 Jindal Steel 7/28/2004 281365 500 8/8/2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 9/3/2004 83510 1000 4/19/2006 405490 321980 593 31 KEC 9/3/2004 83509 1000 4/18/2006 407700 324191 592 32 Kalataru Power 3/16/2005 145270 300 10/21/2006 246002 100732 584 33 Kalataru Power 3/4/2005 117311 300 9/25/2006 231326 114015 570 34 IVRCL Infra 10/20/2004 100564 2000 4/28/2006 566722 4666158 555 35 IVRCL Infra 10/20/2004 25141 500 4/25/2006 152681 127540 552 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3000 6/15/2006 504603 372951 444 48 Ansal Properties 12/7/2005 263482 1500 2/23/2007 853421 589939 443 49 Simplex Const. 4/12/2005 51498 102 6/9/2006 158085 106587 423 50 Simplex Const. 4/7/2005 48201 92 5/19/2006 201305 153104 407 51 Ashapura Mine 3/4/2005 70132 765 4/5/2006 189865 119733 397 52 Titan Industries 9/23/2005 239538 500 10/23/2006 395379 155841 395 53 Ansal Prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate proceedings. DETERMINATION 2.11 The submissions of the appellant and the facts have been carefully considered. Various judicial decisions on this subject including those cited by the appellant have also been perused. These decisions lay down principles on the basis of which, it has to be decided whether income from shares is to taxed under the head capital gains or under the business head. No single criterion is decisive but a holistic consideration of all the factors is required. In the light of principles laid down in these decisions, it is clear that in this case, the AO s decision to tax income from shares under the business head and not under the head capital gains, is not legally tenable. 7. Having regard to the elaborate discussion, the CIT (Appeals) consequently concluded that the department s contention that the amounts ought to be treated as business income was meritless in the following terms : 2.1 Ground no. 1 challenges the addition of ₹ 2,77,96,322/- on account of considering STCG and LTCG of ₹ 80,02,356/- and ₹ 1,97,93,968/- as business income. In the astt. order, the A.O. has stated that the appellant is a doctor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) accepted the assessee's submissions that no additional evidence were filed. Thus Ld. CIT(A) without verifying from the AO, has accepted that additional evidence were furnished during the appellate proceedings. In our considered opinion on the facts and circumstances of the case, AO should have been given an opportunity to go through the submissions before the Ld. CIT(A) and given a report. 8.2 As regards, the merits of the case, we note that Ld. CIT(A) has produced the assessee's submission in his whole order and then in few pages he has noted down briefly the assessee's submission in his own order. Thereafter, Ld. CIT(A) has allowed assessee's appeal. Ld. CIT(A) has not given any finding himself on the submissions of the assessee. In these circumstances, the Ld. CIT(A) order cannot be said to be a speaking order showing proper application. In our considered opinion, on the facts and circumstances of the case, interest of justice will be served if the matter is remitted to the file of the AO. The AO is directed to consider the issue afresh. Needless to add that the assessee should be granted adequate opportunity of being heard. 9. The appellant s counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istaken in its assumption that some additional evidence was led before the CIT (Appeals). In fact, the order of the CIT (Appeals), in para 2.10 clearly records that the appellant had clarified that no additional evidence was filed during the appellate proceedings. Furthermore, a comparison of the details of the share transactions in question from the AO s order and the CIT (Appeals) order would show that there is complete identity as to the details of the transactions i.e. the name of the companies, the duration of holding, date of purchase, date of sale etc. In fact, CIT (Appeals) s order is a more elaborate analysis of some basic material. Furthermore, it was not pointed out during the course of the hearing as to what was the additional material or evidence reiterated before the CIT (Appeals) by the assessee, which necessitated the remand. In these circumstances, the Court is of the opinion that present appeal has to succeed. However, we notice that the CIT (Appeals) had recorded that 29% of the transactions reported by the assessee could be treated as short term capital gain. In these circumstances, the remand directed by the ITAT is limited to enquiry on this aspect. The rights ..... X X X X Extracts X X X X X X X X Extracts X X X X
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