TMI Blog2015 (12) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... re the hon’ble high court. We do not see the same to be a plausible explanation for adopting a different view. More so, when the same has arisen in assessee’s own case in preceding assessment years without these being any change in facts and circumstances. We adopt consistency in these facts and reject the Revenue’s sole substantive ground. - Decided against revenue - ITA No. 1937/Ahd/2011 - - - Dated:- 26-8-2015 - Shri G. D. Agrawal, Vice President and Shri S. S. Godara, Judicial Member For The Revenue : Shri Vilas Shinde, Sr. D.R. For The Assessee : None ORDER PER : S. S. GODARA, JUDICIAL MEMBER:- This Revenue s appeal for A.Y. 2008-09, arises from order of the CIT(A)-II, Surat dated 31-05-2011 in appeal no. CAS-II/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant submitted that treatment given to the long term capital gains and short term capital gains declared in the A.Y. 2005-06 A.Y. 2006-07, as business income, has been decided by the ITAT, wherein long term capital gain has been held taxable under the head of 'long term capital gain' and the short term capital gain has been held to be divided into two parts, first where short term gain is from sale of shares held for a period of less than 30 days, which is to be taxed as 'business profit', and, second where short term capital gain is from sale of shares held for a period of 30 days or more, but less than 1 year, which has to be taxed as 'short term capital gain'. The appellant also submitted that on the basis of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration, assessee has shown short term capital gain on sale of shares of ₹ 79,92,480/- and long term capital gain on sale of shares of ₹ 1,06,96,159/-.The assessee was required to submit the explanation as to why the same should not be treated as business profit. Assessee vide letter dated 18.11.2010 filed a reply, the relevant portion of which is reproduced at para no. 4 of the assessment order [Page no. 2]. However, assessing officer was not satisfied with the assessee 's reply and therefore as per his findings given at para no. 5 of the assessment order [Page no. 2], made the addition of ₹ 7,86,88,639/- (Rs. 79,92,480/- + ₹ 1, 06,96,1 59/-) by treating the short term capital gain and long term capital gain as b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem should be treated as profit from business and where shares are held for more than a month, they should be treated as investment and on their sale short term capital gains should be charged. As there is no difference in the facts for the year under consideration and as above decision has been given in appellant's own case by Honourable ITAT, it is prayed that above ratio of Honourable ITAT may kindly be applied for the year under consideration. In the immediately preceding year, your Honour has also passed the order accepting above plea of appellant. 4. In view of the above and detailed submissions made during the course of assessment proceedings vide letter dated 18/11/2010 which is reproduced in para 4 of assessment order a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions. 5. We have heard the Revenue and perused the case file. None has come present at assessee s behest despite service of notice. We proceed ex-parte. It transpires that the Commissioner of Income Tax(A) has followed the tribunal s order in deceased assessee s own case relating to preceding assessment years in directing the Assessing Officer to treat profits arising from shares held less than 30 days only as business income and exceeding the said period to be capital gains. There is no distinction on facts forthcoming. The Revenue merely pleads that its appeal u/s. 260A of the Act is pending before the hon ble high court. We do not see the same to be a plausible explanation for adopting a different view. More so, when the same has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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