TMI Blog2016 (1) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income Tax” [1991 (11) TMI 2 - SUPREME Court]. Treatment to all gains from PMS as income from business - Held that:- Respectfully following the decision of the Hon’ble High Court of Delhi (2014 (5) TMI 18 - DELHI HIGH COURT), we direct the AO to treat the gains under the head ‘STCG/LTCG’. - Decided in favour of assessee. Additions made by the AO by treating exempt profit on sale of agricultural land as taxable income - Held that:- Since the population of village Ramshej where the impugned land is situated is only 2929 as per the report of the Tahasildar, in our understanding of law the said land has to be treated as agricultural land outside the purview of the definition of capital asset. We accordingly set aside the finding of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is actually engaged in the business of share trading since he is also doing business in future and options segment of the share market. The AO further observed that the holding period of the assessee ranges from a short period of one day to 200 days, therefore, the contention of the assessee that he is an investor cannot be accepted. The AO accordingly treated the capital gains offered as STCG/LTCG as Business Income of the assessee. 4. Assessee carried the matter before the Ld. CIT(A) and reiterated his claim. However, the Ld. CIT(A) did not concur with these submissions of the assessee and drawing support from various judicial decisions the Ld. CIT(A) confirmed the assessment. Aggrieved by this, the assessee before us. 5. The Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adhasoami Satsang Saomi Bagh v. Commissioner of Income Tax [1992] 193 ITR 321 (SC). 7. Considering the facts in totality in the light of the ratio laid down by the Hon ble Supreme Court (supra), we direct the AO to treat the gains under the head STCG/LTCG . Ground No.1 is accordingly allowed. 8. Ground No.2 relates to the direction of the Ld. CIT(A) to treat all gains from PMS as income from business. This issue finds place at page 7 of the Ld. CIT(A) s order wherein the Ld. CIT(A) has heavily relied upon the decision of the Tribunal-Delhi Bench in the case of Radials International in ITA No.1368/Del/2010. The Ld. CIT(A) has also incorporated the relevant findings of the Tribunal in the body of the assessment order and at page 9 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of agricultural land as taxable income. 12. During the course of the scrutiny of assessment proceedings and after perusing the details filed by the assessee, the AO found that the assessee has sold 2 plots of land during the year. These plots are situated at Ramshej Village, Dindori Taluka, District Nashik. The AO further found that the assessee has claimed profit on sale of these lands as exempt. However, the AO found that the assessee has not claimed the said exemption in the return of income filed by him in ITR-3. The assessee was asked to justify his claim and to further explain why the capital gain on sale of land should not be taxed. The AO also deputed Income Tax Inspector to verify land records. The AO also called for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [***] 15. We have also gone through the contents of the letter/report of the Tahasildar, Dindori dated 20.12.10 wherein he has stated that population of village Ramshej where the impugned land is situated is 2929 as per the census. The report also says that the said land was sold as agricultural land and till date it has not been converted for non agricultural dues. In our considered opinion, for claiming the exemption as agricultural land either of the two conditions has to be fulfilled. a) It should not be in any area within such distance not being more than 8 kms from the local limits and any municipality or cantonment board and; b) which has a population of not less than 10,000. 16. Since the population of village R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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