TMI Blog2014 (9) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... t call for any interference. It deserves to be noticed that it is the primary duty of an appellant to point out the errors in the order passed by the CIT(A) and merely relying upon the order passed by the AO, without bringing on record any material to contradict the findings of the CIT(A), could not serve any purpose except indicating the casual approach of the Revenue in dealing with such matters. - ITA No. 3455/Mum/2012 - - - Dated:- 23-9-2014 - Shri D. Manmohan, Vice President and Shri D. Karunakara Rao, Accountant Member Appellant by: Shri Vivek Batra O R D E R Per D. Manmohan, V.P. This appeal by the assessee is directed against the order dated 29.02.2012 passed by CIT(A)-8, Mumbai and it pertains to AY 2008-09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment activity. Assessee submitted before the AO that the profit on sale of the above investment gives rise to short term capital gains. 5. In the scrutiny assessment proceedings the AO dealt with the issue in detail in the backdrop of the precedents and observed that in the instant case the assessee made delivery based transaction in over 300 scrips and the holding period of maximum scrips was very less. In this backdrop he observed that book entries would not be determinative of the character of investment and finally concluded that the assessee is engaged in the business of purchase and sale of shares. Therefore short term capital gain of `2,70,23,685/- was treated as business income. 6. The AO further noticed that the assessee com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction. However the turnover figure of appellant company for the said year was erroneously taken as 3500 crores as against the actual delivery based segment turnover of ₹ 149.97 crores which resulted into capital gain. Consequently the high turnover to investment ratio worked out 80 times as against actual 3.32 times, return on investment in case of gain on disposal worked out at 0.5% as against actual 10.89% and return on investment in the form of dividend work out at 0.30% as against actual 4.15%. Therefore Miscellaneous Application has been filed before the Hon'ble ITAT on 14/11/2011 which is still pending for disposal. Copy of the said application is also placed on record. (ii) On the basis of findings of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee, the AO observed that the assessee is engaged in the business of share broking and dealt with several institutional clients such as LIC, Banks, UTI, foreign Banks, etc. The brokerage was charged at pre-fixed rate decided by mutual understanding, which is inclusive of STT and service tax. Under these circumstances it was contended that it is only the net profit which has to be treated as assessee s actual income; though STT is initially included in the composite bill, it is actually collected and paid on behalf of the clients to the government exchequer and it was never debited to the Profit Loss Account as an expenditure. 10. Having regard to the circumstances the learned CIT(A) set aside the disallowance by observing in para 9.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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