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The DCIT, Circle-2, Ahmedabad Versus Shri Ashokkumar Babulal Almal and Vica-Versa

Surplus of sale and purchase of shares - CIT(A) treated as Income from STCG on which STT is paid - whether A.O. had established that the assessee was engaged in purchase and sale of shares and, hence the trading activity was business activity? - Held that:- The investment is not made out of borrowed funds. The value of investment as on 31/03/2006 is at ₹ 6.02 lacs. The volume of transactions is also not very high. The ld.CIT(A) has observed that in the case of Dineshkumar Kunjbihari Almal, .....

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rejected. - Decided in favour of assessee - I.T.A. No.2694/Ahd/2010, I.T.A. No.2695/Ahd/2010 - Dated:- 21-10-2015 - SHRI G.D. AGARWAL,VICE PRESIDENT (AZ) And SHRI KUL BHARAT, JUDICIAL MEMBER For The Assessee : Shri P.F.Jain, AR For The Revenue : Shri Rakesh Jha, Sr.DR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : These two appeals by the Revenue in the case of different assessees are directed against the separate orders of the Ld.Commissioner of Income Tax(Appeals)-VII, Ahmedabad [ CIT(A) in shor .....

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to assess the income of ₹ 23,68,262/- by treating the same as income from STCG on which STT is paid. 2. The Ld.CIT(A) failed to appreciate the fact that the A.O. had established that the assessee was engaged in purchase and sale of shares and, hence the trading activity was business activity. On the facts and in the circumstances of the case and in law, the CIT(A) ought to have upheld the order of the Assessing Officer since the assessee has failed to disclose his true income. The appellan .....

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f interest amounting to ₹ 4,29,778/- and also treated the Short Term Capital Gain (STCG) as business income of ₹ 23,68,262/- and enhanced the computed income at ₹ 30,36,200/-. The assessee being aggrieved by the assessment order, preferred an appeal before the ld.CIT(A), who after considering the submissions of the assessee partly allowed the appeal. While partly allowing the appeal, the ld.CIT(A) confirmed the disallowance made in respect of interest expenditure. However, ld.C .....

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ssessee is trading into shares. He further submitted that the AO has treated and assessed as business profit, under the head income from business relying upon the CBDT Circular dated 15/06/2007. 3.1. On the contrary, the ld.counsel for the assessee reiterated the submissions as were made before the ld.CIT(A). He submitted that the assessee has been trading into shares as investment. 4. We have heard the rival submissions, perused the material available on record and gone through the orders of th .....

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9;funds. The value of investments as on 31/03/2006 is also meager at ₹ 6.02 Lacs. Further, the volume of transaction and volumes of shares transacted are also not on very much higher side. The assessee is also maintaining the books of account by showing the shares as investment in the books of account and not as stock in trade regularly. The assessee is not a frequent buyer of shares from market but applies in the IPO so as to give boost to the primary market of the stock exchange. Further .....

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T vs NSS Investments Pvt. Ltd. 277 ITR 149 (Madras) and CIT vs. Trishual Investment Limited 215 CTR 96 Madras High Court have also held the income from sale of investments as income from capital gains and not as business income. Recently in the case of CIT v/s Gopal Purohit, Income-tax Appeal No. 1121 of 2009 (Mumbai High Court), wherein even sale and purchase of lacs of shares amounting in crores of rupees was held to be income from capital gains on the basis of method of keeping books of accou .....

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n 31/03/2006 is at ₹ 6.02 lacs. The volume of transactions is also not very high. The ld.CIT(A) has observed that in the case of Dineshkumar Kunjbihari Almal, Ahokkumar Babulal Almal and in the case of assessee himself during AY 2005-06, similar transactions were held to be as investment and not as business. This finding of the ld.CIT(A) is not controverted by the Revenue and no change into facts is pointed out as to why in this year under appeal the transactions are not treated as investm .....

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1. The Ld.CIT(A) erred both on facts and in law in directing the A.O. to assess the income of ₹ 18,47,028/- by treating the same as income from STCG on which STT is paid. 2. The Ld.CIT(A) failed to appreciate the fact that the A.O. had established that the assessee was engaged in purchase and sale of shares and, hence the trading activity was business activity. On the facts and in the circumstances of the case and in law, the CIT(A) ought to have upheld the order of the Assessing Officer s .....

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