TMI Blog2018 (11) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... her investment have been made. Further, in case of the assessee, in earlier years the revenue has accepted the claim of the assessee as capital gain or loss. There is no change shown to us in the facts of the case this year. In this year only there is a change in the stand of the revenue. CIT(A) has also followed the principle of consistency. On reading of the order of the CIT(A) we do not find any infirmity in holding profit of sale of mutual fund earned by the assessee as chargeable to tax under the head capital gain and not as business income. - decided against revenue. - ITA No. 3728/Del/2016 - - - Dated:- 30-10-2018 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Revenue : Smt Ashim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aggrieved with the order preferred an appeal before the ld CIT(A), who held that gain earned by the assessee is capital gain and not business income vide para No. 3.7 to 3.11 of his order as under:- 3.7 I have considered the submissions of the appellant and the facts of the case along with the documents on record. The appellant had filed certain evidence more particularly annexure-8 showing the details of long term capital gains and short term capital gains, the amount invested and the period of holding in a tabular form during the appellate proceedings. Even though, it is part of books of accounts of the appellant but since the same was not submitted during the assessment proceedings the same was forwarded to the AO vide this office l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding the correctness of the finding given in the para 4.3.5 (ii) in the assessment order as discussed above. The Assessing Officer in her remand report did not contradict the submission of the appellant with respect to the period of holding as claimed by him. However, the Assessing Officer in para 5 of the remand report reiterated that period of holding was short in most of the cases and assessee had dealt a larger number of shares/securities in this year and most of the cases shares/securities were bought and sold during the year. To substantiate the Assessing Officer pointed out the following 4 securities which were bought and sold during the year. The details of such securities including the purchase price/sales price and the gains and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same year but it is to be noted that the assets at serial no. 2 3 were purchased and sold in two different financial years and in all the transactions, the period of holding is not as short as few days but varies between 72 days to 97 days and it does not show the intent of the appellant to do business in the above mutual funds but to earn appreciation in the value of investment over a interval of time. 3.10 The Assessing Officer in the Remand Report has relied upon the decision in the case of PVS Raju vs. Addl. CIT, Hyderabad (supra) to contend that the frequency, magnitude and the volume of transaction of the appellant justifies the action of the Assessing Officer in treating the capital gain amounting to ₹ 2,69,53,746/- as bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 18.03.2016. 3.11 Therefore, in view of the above discussion, it is held that the appellant has right considered the capital gains in respect of the mutual funds as shown in annexure-8 as discussed above in his computation of income and the same is in harmony with circular no. 4/2007 dt. 15.06.2007. Further, the same is also acceptable by applying the principle of consistency as no new facts have been brought for this year. Therefore, the action of the Assessing Officer in treating the capital gains of ₹ 2,69,53,746/- as business income is not justified and the Assessing Officer is directed to accept the amount of Rs, 2,69,53,746/- as capital gains as offered by the appellant. Ground no. A (1 to 9) of the appeal is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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