9911796707
TMI Blog2016 (6) TMI 1396X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment year 2008-09: "1. The order of the ld. CIT(A) is not justified in law and on facts and circumstances of the case. 2. The ld. AO is not justified in treating the long term capital gains arising from sale of shares as business income, without appreciating those shares were held as investments in the books of the appellant since inception. 3. The ld. AO has failed to appreciate that the shares held in Portfolio Management Scheme at Kotak Finance as stock-in-trade was converted into investments on 01-04- 2004 and the shares sold during the impugned year did not relate to the converted stocks. 4. The ld.AO has failed to appreciate that shares of Colgate Palmolive were purchased on 03-09-1998 and since then the same were h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as investments in the books of the appellant since inception. 3. The ld. AO has failed to appreciate that the shares held in Portfolio Management Scheme at Kotak Finance as stock-in-trade was converted into investments on 01-04-2004 and the shares sold during the impugned year did not relate to the converted stocks. 4. The ld.AO has failed to appreciate that shares of Tata Iron & Steels Co.Ltd and Monsanto India Ltd., were purchased subsequent to converting stock-in-trade to investments and the same were held as investments from the beginning. 5. The ld. AO have failed to appreciate that when the treatment accorded by the appellant to the shares sold during the impugned year as investment was not disturbed, the gain from the sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the income arising from the sale of these shares is long term capital gain. At this juncture, the Bench wanted to know the evidence regarding the stated date of purchase and date of sale of these shares and enquired about the evidence in support of the stated date and cost of acquisition etc. In reply, it was submitted by the ld. AR of the assessee that the same is not readily available and for the purpose of factual verification regarding date of purchase, cost of purchase and date of sale to find out the period of holding, the matter may be restored back to the file of the AO. As against this, the ld.DR of the revenue supported the orders of the authorities below. 5. I have considered the rival submissions. I find that this is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I feel it fit and proper to restore back this factual aspect to the file of the AO and accordingly, I restore this matter back to the file of the AO for the limited purpose of examining the date of acquisition of shares and date of sale of shares to decide as to whether the gain arising on sale of such shares is short term capital gains or long terms capital gains. I want to make it clear that the burden is on the assessee to bring evidence on record regarding the date of purchase and date of sale of these shares and thereafter, the AO should pass necessary order as per law in the light of the above discussion after providing adequate opportunity of being heard to the assessee in both years. 6. In the result, both the appeals of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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