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TMI Blog2017 (2) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... AY) 2005-06, 2006- 07, 2007-2008 & 2008-09. 2. First we take up the assessee's appeal in ITA No.2340/Ahd/2012 for the A.Y.2005-06. The assessee has taken following ground of appeal:- (i). Ld. CIT(A) has erred both in law and on facts of the case in passing an appellate order for A.Y.2005-06 on 27/08/2012. (ii). The Ld. CIT(A) has erred in confirming the reassessment proceeding u/s.147 of the I.T. Act. Although reasons recorded by the Ld. A.O. were not valid. (iii). The Ld.CIT(A) has erred in confirming the addition of Rs. 28,51,267/- (Net) by considering income from sale of investment in Shares & Secrurities as business income. (iv). The Ld. CIT(A) has erred in confirming disallowance of Rs. 4,460/- u/s.14A of the I.T. Act. 3. The fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings and on examination of return of income the following issues have emerged for discussion/disallowance: 6. Share/unit Transactions: On verification of the P & L Account it revealed that the assessee has shown profit on sale of investment of Rs. 40,81,252/- and the same has been offered as Short Term Capital Gains for taxation. From the nature of transaction entered into by the assessee it is found that the income of the assessee of Rs. 40,81,252/- cannot be treated as profit on sale of investment but it is to be treated as business income. 7. In this regard a show cause issue notice was issued to the assessee and in compliance with the said notice, assessee replied as following distinction between investment income and business inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive assessment years which had been held to have resulted in capital gains instead of business income. A Co-ordinate Bench in identical case of Hitesh Doshi 46 SOT 336 (Mum.) held that when an assessee maintains similar number of companies and only number of shares therein increase or decrease, he is only a prudent investor. We take into account all the above stated facts, circumstances and case law quoted hereinabove to hold that the assessee is an investor not engaged in the business of sale purchase of shares and mutual funds. The question is accordingly decided against the Revenue both assessment years. The A.O. is directed to treat her income from sale of shares and mutual funds in the two assessment years as short term capital gains a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A) has erred in confirming the addition of Rs. 20,35,425/- being Short Term Capital Gain and Rs. 35,03,583/- being Long Term Capital Gain by considering income from sale of investment in Shares & Securities as business income. 15. So far as ground Nos we don't want to repeat the facts of the case. The case has been already discussed in appeal No.2340 and reach in thereof and Ground No.2 is not tenable in the eyes of law and so far confirming the addition of Rs. 20,35,425/- being Short Term Capital Gain and Rs. 35,03,583/- Long Term Capital Gain considering sale of investment in share as business income already in this earlier appeal in the same income not a business income and same to be treated as Long Term Capital Gain and as Sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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