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Pr. Commissioner of income tax Bangalore. Versus M/s. Telestar Investments Pvt. Ltd.

2016 (7) TMI 1087 - KARNATAKA HIGH COURT

Profit of sale of share - capital gain or business income - Held that:- In the present case, the peculiar facts are that the investment made was shown as investment and the cost was reflected throughout in the balance sheet and it was never treated as stock-in-trade. Further, if it was to be treated as stock-in-trade and the market value plus cost would have been considered, but such was not treated accordingly by the assessee in the books of accounts. There was also lock-in period for holding o .....

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venue has preferred the present appeal by raising the following substantial question of law: Whether on the facts and in the circumstances of the case, the Tribunal is in law in holding that the assessing authority is not right in treating profit derived of ₹ 10,66,425/- on sale of shares under the head business income and not under the head capital gains when the assessing authority has rightly treated the same as business income considering the intention of assessee for making profit by .....

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found that it is profit of business and not a capital gain. In appeal before CIT (Appeals) at paragraphs-5 and 6, it was observed thus: 5. The Hon'ble ITAT Bangalore A-Bench vide its order dated 08.09.2006 while setting aside the case to the file of the A.O had observed as under. "It is not clear as to whether the assessee company used its own funds or borrowed funds for acquiring such shares. We are not aware as to whether the assessee company was valuing the stock-in-trade at cost pr .....

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assessment order that vide letter dated 26.11.2007 the A.R of the appellant stated that the shares which were sold were not acquired out of borrowed funds and all the shares purchased by the company were held as investments and valued at cost consistently from its inception and year after year. However while determining the nature of income the A.O did not consider these crucial points. As there is no evidence to show that the appellant held these shares as stock-in- trade at any point of time, .....

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therefore, it should be treated as long term capital gain. 4. The Income Tax Appellate Tribunal in the appeal at paragraph-5 interalia observed, the relevant of which is as under: We find that the AO has not given any reasons for not accepting the assesse s contention and also as to how these decisions are applicable to the facts of the case before him. Therefore, in our opinion the CIT(A) has rightly observed that the assessee's statement that the shares which were sold were not acquired ou .....

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t rebutted by the Assessing Officer, the Tribunal did not interfere with the view taken by the CIT (Appeals). 6. The learned Counsel appearing for the appellants-Revenue by relying upon the decision of the Apex Court in the case of Chennai Properties & Investments Ltd Vs. Commissioner of Income Tax reported at (2015) 373 ITR 673 (SC) made an attempt to contend that the income should have been treated as that of the business income and not as that of the investment income or capital gain. 7. .....

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