TMI Blog2014 (2) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... essments u/s 143(1) remains assessment and moreover otherwise also assessee has strong case in her favour as she had been classifying the cost of shares as investment and not as stock in trade which is important indication of intention of the assessee. - Decided against Revenue. - I.T.A. No.5405,5406&5407/Del/201- - - - Dated:- 7-2-2014 - SHRI I.C. SUDHIR AND SHRI T.S. KAPOOR, JJ. For The Appellant : Ms. Meenakshi Vohra, Sr. DR. For The Respondent : Shri Sanjeev Jain, C.A. ORDER PER TS KAPOOR, AM: These are three appeals filed by the revenue against the separate orders of CIT(A) all dated 24.9.2010. The common grievance raised by revenue in all these appeals is the action of Ld CIT(A) in holding the profit on transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he brokers i.e. M/s Quantum Securities Pvt. Ltd. was `.35,56,868/- on 31.3.2004 and `.6,48,494/- as on 31.3.2005. During the course of assessment proceedings, assessee has stated that no transactions of shares was made through her Demat Account, but money was parked with her broker M/s Quantum Securities Pvt. Ltd. who has issued contract note for sale and purchase of shares made on behalf assessee. It is clear from these contract note that the assessee has never get shares in her Demat Account and only settlement has been made through this contract note. On going through the copy of account of M/s Quantum Securities Pvt. Ltd. it has found that assessee has parked `.35,65,868/- with broker M/s Quantum Securities Pvt. Ltd. and afterwards neit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done according to the advice obtained. The assessee s justification of using Demat A/c of broker is also satisfactory. In fact, in later years, the assessee has got a Demat A/c in her name in the vicinity of the broker s office for operation convenience. iv) Such investment in shares and consequent long term/short term capital gain or loss have been accepted in earlier years. v) The assessee has always shown the stock of shares as investment and not in stock. vi) In cases of many shares, just because shares have been sold before completion of a year, cannot be taken as a basis to penalize the assessee with the view that it was a business transaction, when the assessee is duly showing it as short term capital gain. vii) Long term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital appreciation. Reliance in this respect was placed on a number of judicial pronouncements detailed as under:- 1. CIT v. Karam Chand Thapar And Brothers Private Limited. 176 ITR 535 (SC). 2. CIT v. New Era Agencies (P) Ltd. 68 ITR 585 3. CIT v. Amalgamation 108 ITR 895. 4. CIT v. Satluj Cotton Mills 100 ITR 706. 5. On the strength of these judgments the Ld DR argued that as had in these cases the assessee was also indulging into business activities. 6. The Ld AR, on the other hand, submitted that assessee was a senior citizen and wife of a retired Colonel and her only girl child was living in USA since 1991 and the child with a view to secure financial security of mother had gifted an amount of `.48,77,278/- which was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Gopal Purohit with the proposition that where the assessee was engaged in delivery based transactions, the same has to be taken as transaction of investments. 2. 327 ITR 445 in the case of Rohit Anand with the proposition that where the assessee s intention was only financial security and maximization of wealth there cannot be said to be an intention of trading in shares and then the same cannot be treated as business income. 3. 11 SOT 627 (Mum. ITAT) in the case of Janak S., Rangwala with the proposition that where an assessee had earned a short term capital gain of `.1.47 crores in respect of transaction in shares held as investment then such transaction arise due to only capital gain notwithstanding volume and magnitude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and we do not find any infirmity in the same. The case law relied upon by Ld DR do not have similar facts and circumstances. The contention of Ld DR that in succeeding years assessments were completed u/s 143(1) therefore assessee cannot claim the benefit of continuity also does not carry much force as for all practical purposes. Assessments u/s 143(1) remains assessment and moreover otherwise also assessee has strong case in her favour as she had been classifying the cost of shares as investment and not as stock in trade which is important indication of intention of the assessee. 10. In view of the above, the appeals filed by the revenue are dismissed. 11. Order pronounced in the open court on 7th day of February, 2014. - - TaxTM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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