TMI Blog2018 (11) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... .27 Lakhs) arose from the similarity of transactions in the preceding assessment year. Thus, we are disposed to hold that the action of the CIT(A) in confirming the order of the AO is misplaced. We accordingly set aside the order of the CIT(A) and direct the AO to treat the income arising from delivery based transactions in shares under the heard ‘capital gains’ as claimed by the assessee. - I.T.A. No. 1072/Ahd/2014 And 130/Ahd/2016 - - - Dated:- 1-11-2018 - SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER For The Appellant : Shri Kamlesh Bhat t , A.R. For The Respondent : Shri S. K. Dev, Sr.D.R. ORDER PER PRADIP KUMAR KEDIA - AM: The assessee has filed two appeals for AY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the head capital gains by the assessee. However, the AO has held that purchase and sale activity of shares tantamounts to business activity as motive to earn regular proceed from trading can be deduced from such activities. The AO accordingly re-characterized the gains arising on sale of shares as business income of the assessee instead of capital gains reported by the assessee. The learned AR thereafter referred to the order of the CIT(A) and submitted that the assessee could not get any relief from the first appellate authority either. 6. Delving further, the learned AR for the assessee submitted that the assessee has hardly executed transactions in 32 scrips during the FY 2010-11 which resulted in the aforesaid profits of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled for wherein such activities have been regarded as business activities . 8. We have carefully considered the rival submissions. The essential controversy in the captioned appeal relates to characterization of income arising from delivery based purchase and sale transactions in shares. While it is the case of the assessee that the gain arising on sale of shares is chargeable under the head capital gains in consonance with the earlier assessment years, the Revenue, on the other hand, seeks to hold that such activity of purchase and sale of shares give rise to business income. The issue is essentially factual in nature. On perusal of facts recorded in the orders of the authorities below, it is seen that the assessee has entered into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxes Paid Income if Share Prof it is Business Taxes Payable 2008-09 901510 219453 901510 219453 2009-10 487310 54036 NIL NIL 2010-11 640802 79921 1035260 221015 2011-12 492650 34263 525505 40275 2012-13 799250 94606 227480 4890 TOTAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his year are purely factual and will not operate as res-judicata in the succeeding assessment year. 9. In the result, appeal of the assessee in ITA No.1072/Ahd/2014 is allowed. 10. We now advert to appeal of the assessee in ITA No.130/Ahd/2016 for AY 2010-11. 11. The captioned appeal arises from the order of the CIT(A) dated 13.10.2015 emanating from the rectification order passed by the AO under s.154 of the Act concerning AY 2010-11. 12. The assessee in the captioned appeal has challenged the action of the CIT(A) for denying the set off of short term capital losses of ₹ 39,27,238/- brought forward from AY 2009-10 as discussed in the earlier appeal in preceding paragraphs in an appeal against the order passed by AO under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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