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TMI Blog2015 (2) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... - as a STC Gain instead of business income made by AO in his assessment order, ignoring the fact that:- a) The assessee has deployed his fund with an intention of earning profit of such funds and there was no intention of the assessee to appreciate the investment so made during the year. b) The assessee had no intention to hold her shares in order to earn regular income out of such purchases. 2. On the facts and in the circumstances of the case and in law, the Learned CIT(A) has failed to appreciate the in depth analysis made by the AO before treating the gains as business income and that circular no. 4 of 2007 has be taken into consideration to decide whether the Gains are to be treated as such or as business. 3. On the facts and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l rate @ 10% as provided uls.111A of the Act. The A.R of the appellant vide his letter dtd. 20.12.09 contended that the short term capital gain of Rs. 15,25,348/- [13,60,155/- + 1,65,193] is not correct and in support of his claim he has contended that the correct figure of short term capital gain shall be Rs. 12,86,854/- [11,21,661+1,65,193]. The AO after relying on the CBDT's circular bearing No.4/2007 dated 15.6.2007 and after having given other reasonings treated the long term capital gain of Rs. 14,10,430/- and short term capital gain of Rs. 15,25,348/- as business income in the hands of the appellant. The A.R of the appellant has contended before me that in the earlier Asst. year the appellant was treated as an investor and not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra, therefore, the AO is directed to treat the long term capital gains on sale of shares and sale of mutual funds, sold after 01.10.2004 aggregating to Rs. 14,10,430/- [on sale of shares Rs. 5,87,180/- & on mutual funds Rs. 8,23,250/-] as such and allow the exemption to the appellant u/s.10(38) of the Act. Apart from the above, the AO is also directed to verify the transaction of shares and mutual funds which are delivery based and treat the same as giving rise to capital gains and charge the STCG at concessional rate of 10% as provided u/s.111A of the Act. The other transactions involving non-delivery speculative transactions will be treated as forming part of speculation business and will be taxed as such. The AO is directed to verify and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g at para 4, the CIT(A) found that assessee has earned long term capital gains of Rs. 14,10,430/- on sale of shares and mutual funds which is liable to exemption u/s.10(38). The CIT(A) has also directed AO to verify the transaction of shares and mutual funds held for less than twelve months, which are delivery based and treat the same as giving rise to short term capital gains. The findings recorded by CIT(A) have not been controverted by ld. DR. Accordingly, we do not find any reason to interfere in the order of CIT(A) for allowing assessee's claim of long term and short term capital gains earned on sale of shares and mutual funds. 5. In the result, appeal of the Revenue is dismissed. Order pronounced in the open court on this 18/022015 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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