TMI Blog2016 (2) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... wealth as the trust beneficiaries are only family members i.e., purely blood relatives including children and grand children. The shares in question were acquired and transferred through Portfolio Managers engaged by the assessee. The entire investments have come out of the Corpus Fund of the assessee and no borrowed funds were utilized for purchase of the shares in question. In view of the aforesaid facts the contention of the revenue that the assessee has indulged in business activities in the guise of share investment has no merit. It is quite clear that the over-riding intention of the assessee is not to trade in shares even when the purchase and sale of shares was made through various Portfolio Managers. Therefore the CIT(A) has rightl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re split into 15,00,000 equity shares of the face value of ₹ 1/- each, out of which 9,96,000 equity shares of the face value of ₹ 1 each were contributed to the trust on 01/10/2008. 2.2. Thus, the corpus of the Appellant Trust consisted of; Contribution in cash ₹ 1,90,932/- 9,96,000 equity shares of Glenmark Pharmaceuticals( transferred to the De-mat A/c on 01/10/2008) 2.3. The settler held the shares of Glenmark Pharmaceuticals Ltd. for a period of about 30 years. With changing market conditions, the value of share dropped from ₹ 503.50/-to ₹ 120.85/-. With a view to diversify its risk the trust sold the shares in question. The trustees also appointed IIFL Wealth Management Ltd. on 06/04/2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, the assessee filed an appeal before the Ld. CIT(A). The Ld. CIT(A) after hearing the appellant/assessee relying upon the decisions of various Benches of the Tribunal and Hon ble High Courts, allowed the appeal of the assessee. Dissatisfied with the impugned order passed by the Ld. CIT(A), the revenue is in appeal before this Tribunal. 3. The Revenue has challenged the impugned order on the following effective ground:-. That on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in holding that income totaling ₹ 16,89,87,945/- arising from purchases sale of shares was capital gains and not business income as treated by the Assessing Officer without appreciating that the assessee had engaged the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtan M. Ghia vs. DCIT, ITA 6319/M/10 and cross appeals filed by the Revenue and the assessee ITA No 5397/M/2013 and 5709/Mum/2013 respectively for the assessment year 2010. 4.2. We have heard the rival submissions and also perused the documents on record in the light of the respective contentions of the parties. The core controversy to be adjudicated by this Tribunal is whether in the facts and circumstances of the case and in law the amount of ₹ 16,89,87,945/- arising from purchase and sale of shares by the assessee is to be computed as Capital Gains or the same is to be treated as Business Income ? 4.3. In order to determine the issue in question, it is essential to ascertain some of the material facts i.e., whether the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad purchased/sold the shares in question in the capacity of an investor and not in the capacity of a share trader and therefore, in the present case the income accrued from sale of the shares in question is required to be computed as capital gain and not as business income. 5. In Vinod K Nevatia Vs ACIT, ITA No 6656/M/2009, the Coordinate Bench of Mumbai Tribunal has held that if the assessee purchases the shares from its own funds with a view to keep the funds in equity shares to earn considerable return on account of enhancement in the value of share over a period then merely because the assessee liquidates its investment within six months or eight months would not lead to the conclusion that the assessee had no intention to keep the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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