TMI Blog2017 (2) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... pital gain instead of business income. - TAX APPEAL NO. 38 of 2017 With TAX APPEAL NO. 76 of 2017 - - - Dated:- 8-2-2017 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE APPELLANT : MR.VARUN K.PATEL, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] As common question of law and facts arise in both the Appeals and as such are with respect to the same assessee but with respect to different Assessment Years, both these Appeals are decided and disposed of by this common judgment and order. [1.1] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Income Tax Appellate Tribunal D Bench, Ahmedabad (hereinafter referred to as the learned tribunal ) dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97,893/- and long term capital gain of ₹ 20,51,626/- for sale of shares /mutual funds. However, the Assessing Officer, while framing the scrutiny assessment, did not agree with the same and treated the aforesaid income as income from business. Feeling aggrieved and dissatisfied with the order passed by the Assessing Officer in considering the aforesaid income as income from business and consequently determining the total income at ₹ 2,03,36,870/-, assessee preferred Appeal before the learned CIT(A). Learned CIT(A) considering the material on record and number of transactions, period of holding of shares /mutual funds etc. set aside the order passed by the Assessing Officer and allowed the claim of the assessee considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2007-08 mechanically. Making the above submissions, it is requested to admit /allow the present Appeals. [5.0] We have heard Shri Varun Patel, learned Counsel appearing on behalf of the revenue at length. We have perused the impugned judgment and order passed by the Assessing Officer, learned CIT(A) and the learned tribunal. It is required to be noted that on appreciation of material on record, more particularly, number of transactions, holding period, investment in shares /mutual funds etc. and considering the fact that for the earlier Assessment Years income from similar transactions are held as capital gain and not treated as business income, the learned CIT(A) for the Assessment Years 2007-08 and 2008-09 held that the income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook no.1) that there are four transactions aggregating an amount of ₹ 18,811/- in which there is a negative dates shown under the head short term capital gain which cannot be allowable as STCG. 2.2.3 Therefore, having considered the facts and circumstances of the case and the decision of Hon ble Gujarat High Court and Mumbai High Court as laid down general guideline in this regard and the conduct of appellant has not been contradictory. Hence, in view of the Circular No.4/2007 of CBDT dated 15/06/2007, decisions relied on by the AR of the appellant, I hold that the appellant cannot be said to have been trading in shares. The A.O. is directed to accept the impugned amount as returned by the appellant under the head: Long Term Cap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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