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TMI Blog2013 (5) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by Ld. CIT(A)-XXV, Mumbai dated 16/1/2009 in respect of assessment year 2005-06. Grounds of appeal in ITA No.1768 & 1769/Mum/2010 are identical and read as under: "1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in directing the A.O. to accept the claim of Long Term Capital Gain & Short Term Capital Gain on profit arriving from purchase & sale of shares instead of business income treated by the A.O. without appreciating the fact that the assessee is dealing in large volume of shares, most of the shares are bought and sold within short period, while some are not sold due to market conditions and their holding with assessee remains beyond few days, it will not change the nature of transactions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and purchase of shares was assessable under the head "capital gain" and the said order of the Tribunal was challenged by the revenue before Hon'ble Bombay High Court and the said appeal of the revenue has been decided by Hon'ble Bombay High Court vide its order dated 9/1/2013 in Income Tax Appeal No.1088 of 2011 and departmental appeal was dismissed with the following observation: "This appeal by the revenue under section 260A of the Income Tax Act, 1961 challenges the order dated 24/3/2010 of the Income Tax Appellate Tribunal relating to assessment year 2005-06. 2) The revenue has formulated the following questions of law for consideration by this Court. a) Whether on the facts and circumstances of the case and in law, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the volume and turn over coupled with period of share holding and the value of transaction in shares concluded that the respondent assessee was carrying on share trading business. Thus, the income was liable to tax under the head profit and gains of business. 4) However, both the Commissioner of Income Tax (Appeals) as well as Tribunal have recorded a finding of fact that the respondent assessee was carrying business of investment in shares for last 30 years and for the last 25 years was assessed to tax under the head capital gains and not under the head of profit and gains of business by the revenue. The revenue never treated the shares as stock in trade of the respondent assessee. This finding that the respondent assessee is not carryi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of transaction increased due to market trend. (iii) The shares were shown as investment and not as stock-in-trade in the balance sheet. Moreover the investment was purely out of appellant's own funds and not out of borrowals. (iv) The appellant relied on the CBDT Circular No.4/2007 dated 15.06.2007 wherein it is held that it is possible for a tax payer to have two portfolio i.e. investment portfolio and trading portfolio." Thus it was pleaded by Ld. AR that the departmental appeals should be dismissed and ITA No.1839/Mum/2009 filed by the assessee should be allowed. 4. On the other hand, Ld. DR in respect of ITA No. 1768 & 1769/Mum/2010 has relied upon the orders passed by A.O and in respect of ITA No.1839/Mum/ 2010 she reli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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