TMI Blog2018 (12) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... e, that by itself cannot be a reason to treat the short term capital gain derived from sale of share as business income. More so, when the Assessing Officer has not disturbed the assessee’s claim in any other assessment year. Therefore, applying the rule of consistency also assessee’s claim of short term capital gain has to be accepted. We direct the Assessing Officer to assess the amount of ₹ 4,17,413, received from sale of shares held for less than 30 days and shown under the head short term capital gain as business income. Grounds raised are partly allowed. - ITA no.724/Mum./2015 - - - Dated:- 11-7-2018 - Shri Saktijit Dey, Judicial Member And Shri Ramit Kochar, Accountant Member For the Assessee : Shri Haridas Bhat Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he preceding assessment years assessee s income consisted mainly of business income, whereas, in the impugned assessment year major part of the income consisted of short term capital gain. After referring to a number of judicial precedents the Assessing Officer ultimately held that the assessee has carried on share transaction as organized commercial activity, hence, income derived therefrom will come under the head business and profession. Accordingly, he assessed the income from share transaction amounting to ` 1,14,79,724, as business income. 4. Against the aforesaid decision of the Assessing Officer assessee preferred appeal before the learned Commissioner (Appeals). However, learned Commissioner (Appeals) rejecting the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the Tribunal in assessee s own case for assessment year 2006 07, in ITA no.2/Mum./2014, dated 29th June 2016, and the assessment orders passed under section 143(3) of the Act for assessment years 2014 15 and 2015 16. The learned Authorised Representative referring to a chart containing the details of share transactions submitted, in majority of the cases the shares were held for more than 30 days. He submitted, income derived from sale of shares held for less than 30 days is only for ` 4,17,413. He submitted, while the assessee himself has treated the income derived from intra day transaction as business income, he is further willing to offer the income derived from sale of shares held for less than 30 days as business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2015 16, it is evident, though, the assessee offered substantial income from share transaction as short term capital gain compared to business income, the Assessing Officer has accepted assessee s claim without treating the short term capital gain as business income. Therefore, merely because the business income is shown at a lesser figure, that by itself cannot be a reason to treat the short term capital gain derived from sale of share as business income. More so, when the Assessing Officer has not disturbed the assessee s claim in any other assessment year. Therefore, applying the rule of consistency also assessee s claim of short term capital gain has to be accepted. However, keeping in view the submissions made by the learned Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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