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ACIT- 16 (2) , Mumbai Versus Shri Nemichand P Jain

2016 (2) TMI 371 - ITAT MUMBAI

Transaction of purchase and sale of shares - Short Term Capital Gain and Long Term Capital Gain OR Business Income - Held that:- The portfolio held by the appellant when considered in the light of number of scrips held/purchased/sold and corresponding number of transactions, number of days transacted in market, lack of frequency of transactions, consistent valuation of shares at cost value, separation of speculation/F&O business from investment activity, investment being made from own funds show .....

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earned by assessee is over ₹ 16.72 lakh which indicates that assessee has been a long term investor in shares. In view of above CIT(A) was justified in directing to assessee long term capital gain under respective heads.

This reasoned factual finding of CIT(A) need not interference from our side. We uphold the same. - Decided against revenue - ITA. No. 7159/Mum/2013 - Dated:- 13-11-2015 - SHARMA, ACCOUNTANT MEMBER For The Appellant : Shri Airiju Jaikaran, D.R. For The Responden .....

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mstances of the case and in law, the Ld. CIT(A) erred in treating the transaction of purchase and sale of shares as Short Term Capital Gain instead of Business Income ignoring the landmark judgment of Hon. ITAT IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI in the case of Veena S. Kalra, Mumbai v/s Department of the Income-Tax, ACIT 16(1), Mumbai delivered on 10th July, 2013 bearing I.T.A. No. 2403/M/2012 (Assessment Year:2008-09). 2. Appellant is an individual. The return of income for th .....

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idering the submissions on behalf of assessee treated the short term capital gain of ₹ 38,67,267/- and long term capital gain of ₹ 10,59,831/- as business income of assessee and added the same to the total income of assessee. 2.1 Matter was carried before first appellate authority where various contentions raised on behalf of assessee to justify its claim of short term capital gain and long term capital gain in respect of income from shares. Having considered the same CIT(A) granted .....

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a, Mumbai v/s Department of the Income-Tax, ACIT 16(1), Mumbai delivered on 10th July, 2013 bearing I.T.A. No. 2403/M/2012 and required to set aside the order of CIT(A) and restored the order of Assessing Officer. On the other hand, the Ld. Authorized Representative supported the order of CIT(A). 3. After going through rival submissions and material on record, we find that Assessing Officer has treated the short term and long term capital gain from shares as business income. Assessee is HUF and .....

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are in this category were held by assessee starting from 414 days to 803 days which is fairly long period and there was no reason to consider such transaction long term capital gain as assessee s business activities. The liquidating of investment with a view to minimize the losses when the share market is showing volatility could not be considered as business without attributing churning in same shares. The Assessing Officer observed few transactions wherein the assessee has incurred losses and .....

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was able to absorb the losses incurred by him and still hold the portfolio as investment. The assessee has invested his own capital in investment of shares and no borrowed funds are involved. The assessee was in receipt of salary as a working partner of the firms so he was not full time involved in share dealing. The act of maintaining the regular books along with demat account and contract notes and thus organizing proper records cannot be construed as systematic and regular of trading activity .....

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