TMI Blog2015 (2) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... f the opinion that the CIT (A) has rightly adjudicated the issue in directing the Assessing Officer to treat the said amount as short term capital gains only and not as the business income. Therefore, the decision of the CIT (A) is fair and reasonable and we find no infirmity in the order of the CIT (A). - Decided against revenue - I.T.A.NO. 640/M/2012 - - - Dated:- 25-2-2015 - SHRI H.L. KARWA, PRESIDENT AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER Appellant by : Shri Akhilendra Yadav, DR Respondent by : Shri S.C. Tiwari Ms. Priyanka J. Maru O R D E R PER D. KARUNAKARA RAO, AM: This appeal filed by the Revenue on 1.2.2012 is against the order of the CIT (A)-30, Mumbai dated 21.11.2011 for the assessment year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of ₹ 36,85,500/-. Assessment was completed u/s 143(3) of the Act and the assessed income was determined at ₹ 1,55,87,790/-. During the assessment proceedings, Assessing Officer noticed that the assessee claimed short term capital gain of ₹ 33,17,908/- and the assessee was asked to explain why the income derived from short term capital gains should not be treated as income from the business of share trading. In response, assessee submitted his explanation vide letter dated 9.12.2010. Not satisfied with the said explanation of the assessee, Assessing Officer treated the said short term capital gain of ₹ 33,17,908/- as business income and made disallowance. While making the said disallowance, Assessing Officer relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtracted as under: 3. I have carefully gone through the assessment order and the submissions of the appellant. At the outset the learned AR of the appellant has submitted that in the case of the appellant there is no involvement of any borrowed capital and therefore the volume of transactions in shares is well within the financial capacity of the appellant. Further, it is also submitted that in the case of the appellant there are no repetitive transactions. It is not the case of the AO that the appellant has purchased and sold shares again and again during the year. It is also submitted that in the books of accounts of the appellant shares have been shown as investment and not as stock in trade. The Ld. AR has also submitted that as reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of transactions alone is not a determining factor unless the appellant has engaged himself in repetitive buying and selling of shares. As regards the period of holding the AR of the appellant has stated that even in the transaction of short term capital gains more than 50% of the transaction relates to a period exceeding more than 180 days. Similarly frequency of transaction is also not much. Further in the case of appellant there are no loans and majority of the shares are delivery based. 3.2. In view of the above discussion I am of the view that the Assessing Officer was not justified in treating the short term capital gains of ₹ 33,17,908/-as business income of the appellant . The AO is directed to treat the same as short term c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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