9911796707
TMI Blog2012 (1) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the course of assessment proceedings, the AO on the basis of the details filed by the assessee noticed that for the purpose of earning long term capital gain and short term capital gain, the assessee had entered into a large number of transactions of purchase and sale of shares of various companies. He further noted that the frequency of purchase and sale was very high and volume thereof was large. He further observed that in some cases, the period of holding was a few days only. He further noted that transactions where no delivery was taken, but were squared up on the same day the profit/loss was declared as business income, while in respect of shares of which delivery was taken the surplus/short fall was declared as short term capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestment and not trading, and the same was highlighted by the fact that during the year he had sold some shares which were held by him for more than 5-10 years and above also. The assessee further submitted that where ever delivery of the shares was not taken but transactions were squared up on the same day the resultant income/loss was declared as business income/business loss (speculation) only. The Assessing Officer however not being satisfied with the submissions filed and for the reasons mentioned in page 29 of the detailed assessment order, held that the assessee is a trader in shares and consequently he treated capital gain, both long term, as well as short term declared in the return of income filed as business income and taxed acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be held to be a trader in shares with respect to delivery basis transaction. He, therefore, directed the AO to accept the appellant's claim of short term and long term capital gain on share transaction whether the delivery has been taken or given and Security Transaction Tax has been paid. Other transactions involving non delivery speculative transaction will be treated as forming part of speculation business and will be taxed as such and accordingly allowed the assessee's appeal. 4. Being aggrieved by the order of the ld. CIT(A), the Revenue is in appeal before us challenging in all the grounds the direction of the ld. CIT(A) to accept the short term capital gain and long term capital gain on share transactions where the delivery ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), following the decision of the Hon'ble Bombay high Court in CIT V/s Darius Pandole (2011) 330 ITR 485 (Bom) and the decision in CIT V/s Gopal Purohit (2011) 336 ITR 287 (Bom) held that "...since in the earlier assessment years, the department has accepted the income from shares as falling under the head 'capital gains', in our considered opinion and respectfully following the above judgments, that the ld. CIT(A) was justified in upholding the assessee's stand." 8. Applying the ratio of the above decisions to the facts of the present case, we find that the AO in the case of assessee while making the assessment for the assessment year 2004-05 has accepted the short term capital gain and the long term capital gain on sale of shares vide or ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
