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2018 (4) TMI 750

res of listed companies through different stock exchanges - number of transactions - Held that:- The appellant is not disputing that he has purchased shares for 247 times and sold 263 times - the assessee-appellant to establish the intention by producing his accounts before the department disclosing that he maintained distinction between those shares which are held as stock in trade and those shares which are held as investment. - In our opinion, the aforesaid burden was lying upon the appellant to prove this material aspect before the Assessing Officer but it is obvious from the material available on record that he has not been able to produce any material to show that he maintained distinction between the share held in stock in trade .....

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and sale of shares of listed companies through different stock exchanges. The holding of shares by the appellant HUF in some cases was for more than one or two years and in some cases the shares were purchased and sold within a period of one year. The assessee claimed this income from the transactions in the purchase and sale of shares under the head of short term and long term capital gains. No tax was paid on the long term capital gains claiming the same to be covered under Section 112 and paid tax @ 10% on the short term capital gain as per provisions of Section 111A. The Assessing Officer while examining the case treated these transactions of purchase and sale of shares as income from business and profession and taxed the same according .....

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nsactions as business transactions, is hereby cancelled. Against the order dated 30.05.2008 passed by CIT (A), Bikaner, an appeal was preferred by the Revenue before the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur (ITAT) and the learned ITAT while deciding the appeal filed by Revenue, allowed the same vide its order dated 26.06.2009 and the order dated 30.05.2008 passed by learned CIT (A), Bikaner was set aside and the order of the Assessing Officer, was restored. The instant appeal has been filed by the appellant-assessee under Section 260A of the Income Tax Act, 1961 assailing the order dated 26.06.2009 passed by the ITAT, Jodhpur in Appeal No.499/JU/2008. Learned counsel for the appellant vehemently argued that complete wrong f .....

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2 (42A) and 2 (42B) are applicable only in case of sale of capital assets. Therefore, it is a case in which wrong finding is given by the Assessing Officer, whereas the learned CIT (A), Bikaner, rightly considered the whole aspect of the evidence and passed order in favour, but unfortunately the learned ITAT set aside the order of the CIT (A) on wrong premise. Therefore, the order of learned ITAT may kindly be set aside and the order of the CIT (A), Bikaner, may kindly be restored. Per contra, Mr. K.K. Bissa, learned counsel for the Revenue vehemently argued that no error was committed by the Assessing Officer or by the learned ITAT while treating the income of the appellant arising out from the share trading and other source as business in .....

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ased shares for 247 times and sold 263 times. It also emerges from the facts that it was for the assessee-appellant to establish the intention by producing his accounts before the department disclosing that he maintained distinction between those shares which are held as stock in trade and those shares which are held as investment. In our opinion, the aforesaid burden was lying upon the appellant to prove this material aspect before the Assessing Officer but it is obvious from the material available on record that he has not been able to produce any material to show that he maintained distinction between the share held in stock in trade or those held by way of investment. If the assessee has failed to discharge his burden, caste upon him by .....

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