TMI Blog2016 (6) TMI 1396X X X X Extracts X X X X X X X X Extracts X X X X ..... res were held by the assessee as investments and therefore, the gain arising to the assessee in the present two years on sale of shares is liable to tax as capital gains and not as business income, but whether such capital gain is short term capital gains or long term capital gains, it depends upon the holding period of shares and for that, it is required to examine the date of purchase and date of sale of the shares. Since this aspect was never examined by the lower authorities and facts are not available before me on this aspect,feel it fit and proper to restore back this factual aspect to the file of the AO and accordingly, restore this matter back to the file of the AO for the limited purpose of examining the date of acquisition of shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 03-09-1998 and since then the same were held as investments in the books of the appellants and was never converted into stock-in-trade. 5. The ld. AO has failed to appreciate that shares of Reliance Energy, Reliance Natural Resources and Monsanto India Ltd., were purchased subsequent to converting stock in-trade to investments and the same were held as investments from the beginning. 6. The ld. Lower authorities have failed to appreciate that when treatment accorded by the appellant to the shares sold during the impugned year as investment was not disturbed, the gain from the sale could not have been held as profits of business. 7. The ld. Lower authorities have unjustly followed the decisions of the Hon.ITAT of the earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned year as investment was not disturbed, the gain from the sale could not have been held as profits of business. 7. The ld. Lower authorities have unjustly followed the decisions of the Hon.ITAT of the earlier years without appreciating the vital change in facts during the current year. 8. The lower authorities are not justified in levying interest u/s 234B of ₹ 12,184/- and Sec.234D of ₹ 4,564/- when the very addition to the total income is not tenable. For the above reasons and for such other reasons which may be allowed by the Hon ble Members to be urged at the time of hearing, it is prayed that the aforesaid appeal be allowed . 4. It was submitted by the ld. AR of the assessee that earlier the assessse was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies below. 5. I have considered the rival submissions. I find that this is the claim of the assessee that after assessment year 2005-06 when the assessee converted all its stock-in-trade of shares into investments, the assessee is not engaged in dealing of shares and whatever shares are held by the assessee whether acquired prior to assessment year 2005- 06 or thereafter, these are on account of investments and therefore, any gain arising on sale of such shares held by the assessee as investments is liable to be taxed as capital gain and not as business income. To this extent, I find force in the submission of the ld.AR of the assessee because as per Tribunal s order for the assessment year 2005-06, all the shares which were held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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