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2015 (5) TMI 828 - CALCUTTA HIGH COURT

2015 (5) TMI 828 - CALCUTTA HIGH COURT - [2015] 375 ITR 577 (Cal) - Share transactions - Capital gain or business income - Held that:- Keeping in view of the fact that the assessee has shown the shares which are declared by him either long term or short term capital gains in the investment portfolio and there is no dispute that the same are being valued at cost and on the share holding of the assessee which are stock-in-trade has been valued either at market rate or costs in trade. We find no ju .....

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opinion that the views expressed both by the CIT and the Tribunal for reasons expressed therein are a possible view. It is, therefore, not open to the revenue to contend that the view taken by the Tribunal is perverse - Decided against revenue. - ITA NO.117 OF 2011 - Dated:- 12-5-2015 - GIRISH CHANDRA GUPTA AND ARINDAM SINHA, JJ. MR.S.B.SARAF,ADVOCATE FOR THE APPELLANT MR.J.P.KHAITAN, SR.ADVOCATE FOR THE RESPONDENT JUDGEMENT The subject matter of challenge in the appeal is a judgment and order d .....

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folio of the stock-in-trade has been valued at market rate. He further submitted that the total number of transactions with purchases as well as sales are 220 in number and the ratio between purchase and sale is 59:41 and the holding period in respect of 77 sale transactions are more than 12 months and 13 transactions which is less than 12 months. Under these circumstances he requested to uphold the order to the Ld. CIT (A) and delete that of the Assessing Officer. After hearing the rival submis .....

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ng out of which are short term as well as long term investments portfolio to treat the same as business income. Therefore, we find no infirmity in the order of the Ld. CIT (A) to be inferred with. Therefore, question for consideration was whether the benefit on account of short-term capital gain and long-term capital gain was properly claimed by the assessee. The revenue was unable to find fault with the claim of the assessee. The revenue was not in a position to support the judgment of the asse .....

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nclusion is also strongly supported by the Hon ble Supreme Court in the case of Dalhousie Investment Trust Co. Ltd. vs. CIT (68 ITR 486). In view of the above discussion the total amount of Capital Gain for ₹ 39,18,709/- as shown by the assessee in its return of income is being taken as Business Income instead of Capital Gain as claimed by the assessee. The assessing officer has laid stress on motive. To begin with motive is something, which is locked in the mind of the person. No direct e .....

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