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2017 (2) TMI 549 - GUJARAT HIGH COURT

2017 (2) TMI 549 - GUJARAT HIGH COURT - TMI - Income arising from sale of shares /mutual funds - capital gain OR business income - Held that:- Considering the material on record, more particularly, number of transactions, holding period and the treatment given with respect to similar income in the earlier Assessment Years when the similar income is considered as capital gain and not treated as business income, it cannot be said that the learned CIT(A) as well as the learned tribunal have committ .....

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s 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 30/03/2016 in ITA Nos.1051/Ahd/2011 for the Assessment Year 2007-08 by which the learned tribunal has dismissed the sai .....

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and order passed by the learned tribunal dated 30/03/2016 in ITA No.2760/Ahd/2011 for the Assessment Year 2008-09 by which the learned tribunal has dismissed the said Appeal preferred by the revenue and has confirmed the order passed by the learned CIT(A), revenue has preferred Tax Appeal No.76/2017 to consider the aforesaid question of law. [2.0] For the sake of convenience, facts of Tax Appeal No.38/2017 with respect to the Assessment Year 2007-08 are narrated and considered. [2.1] The Assess .....

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g 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 .....

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order has been passed by the learned CIT(A) confirmed by the learned tribunal for the Assessment Year 2008-09. [4.0] Shri Varun Patel, learned Counsel appearing on behalf of the revenue has vehemently submitted that the learned tribunal has materially erred in confirming the order passed by the learned CIT(A) in holding that the income of the assessee arising from the sale of shares /mutual funds is to be treated as capital gain instead of business income. It is vehemently submitted that conside .....

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se of one another assessee i.e. Shri Ashish N. Soparkar in ITA No.1050/Ahd/2011 for the Assessment 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 .....

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IT(A) confirmed by the learned tribunal cannot be said to be perverse and /or contrary to the evidence on record. At this stage, the observations made by the learned CIT(A) while holding that the income of the assessee arising from the sale of shares /mutual funds is to be treated as capital gain are referred to and considered in paragraph 2.2 to 2.2.3 as under; 2.2. I have considered the submissions made by the A.R. of the appellant and the observations of the Assessing Officer in the assessmen .....

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livery basis. I have also gone through the details produced before me by the A.R. of the appellant in respect of short term capital gain /long term capital gain (in form of Chart). Accordingly on the identical facts, the A.O. cannot deviate from the view adopted in earlier year. However, on going through the page no.11 (paper book 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 .....

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