TMI Blog2016 (7) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... e distinguishable on facts. The AO itself has accepted the identical nature of income in the assessment year 2006-07 u/s. 143(3). Therefore, there being no change in the facts and circumstances of the case and adopting the rule of consistency as also clarified by the CBDT Circular above, there appears to good reason to give a different treatment to the income shown by the assessee as capital gain. - Decided against revenue - ITA No. 4380/Del./2010 - - - Dated:- 12-7-2016 - SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER For The Appellant : Sh. V.R. Sonbhadra, Sr. DR For The Respondent : Sh. V.K. Tulsian, FCA ORDER Per L.P. Sahu, Accountant Member: This is an appeal filed by the Revenue again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther submitted that the assessee derived long term capital gains of ₹ 40,32,189/-, short term capital gain of ₹ 10,74,502/- and saving bank interest of ₹ 29,242/- instead of ₹ 39,84,301/-, ₹ 9,85,531/- and ₹ 5000/- respectively. The Assessing Officer asked to justify why its income from dealing in securities not be treated as income from business or profession instead of income from capital gains. The assessee has earned ₹ 40,32,189/- towards long term capital gain and claimed exemption u/s. 10(38) of the IT Act, 1961 since the transactions were entered through recognized Stock Exchange Securities transactions tax was paid. After going through the detailed examination done by the AO and relying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Business Income - Instructions in order to reduce litigation - reg.- Sub-section (14) of Section 2 of the Income-tax Act, 1961 ('Act') defines the term capital asset to include property of any kind held by an assessee, whether or not connected with his business or profession, but does not include any stock-in-trade or personal assets subject to certain exceptions. As regards shares and other securities, the same can be held either as capital assets or stock-in-trade/ trading assets or both. Determination of the character of a particular investment in shares or other securities, whether the same is in the nature of a capital asset or stock-in-trade, is essentially a fact-specific determination and has led to a lot of uncer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from transfer of such shares/securities would be treated as its business income, b) In respect of listed shares and securities held for a period of more than 12 months immediately preceding the date of its transfer, if the assessee desires to treat the income arising from the transfer thereof as Capital Gain, the same shall not be put to dispute by the Assessing Officer. However, this stand, once taken by the assessee in a particular Assessment Year, shall remain applicable in subsequent Assessment Years also and the taxpayers shall not be allowed to adopt a different/contrary stand in this regard in subsequent years; c) In all other cases, the nature of transaction (i.e. whether the same is in the nature of capital gain or bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 18.02.2015. 5. After hearing both the parties and perusing the materials available on record as well as the orders of the authorities below, we find that the ld. CIT(A) has made good order. For the sake of convenience, we are reproducing the findings set out in para No. 7 to 7.2 at page 22 23 of the impugned order as under : 7. I have carefully gone through the submissions made bythe appellant as well as the findings of the Assessing Officer. I am not in agreement with the Assessing Officer that the appellant has under taken an activity in the nature of business. 7.1. The reliance placed by the appellant in the following case carries fare GOPAL PUROHIT vs. JOINT COMMISSIONER OF INCOME TAX ITAT, MUMBAI G BENCH (2009) 122 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness income or as capital gains. This clarification has been given by the CBDT with the sole objectives of reducing litigation and maintaining consistency in approach on the issue of treatment of income derived from transfer of shares and securities. In view of this clarification, the decisions relied upon by the AO are distinguishable on facts. The AO itself has accepted the identical nature of income in the assessment year 2006-07 u/s. 143(3). Therefore, there being no change in the facts and circumstances of the case and adopting the rule of consistency as also clarified by the CBDT Circular above, there appears to good reason to give a different treatment to the income shown by the assessee. Accordingly, the appeal of the Revenue has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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