TaxTMI 
TaxTMI 
2009 (4) TMI 556
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssessee continued to derive income from capital gains and other sources. On the perusal of the statement of share transactions for the year, the Assessing Officer noticed that there were numerous transactions on a daily basis in large quantity of shares, profit from which was shown by the assessee as short-term capital gain. Apart from that the assessee had also shown long-term capital on shares and mutual funds amounting to Rs. 36.79 lakhs. The Assessing Officer did not dispute the head under which the long-term capital gain was offered for taxation. He however opined that the income shown by the assessee as short-term capital gain was not rightly offered under the correct head On being show caused, the assessee stated that he was investor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....securities have been shown under the head "Investment". Similarly for the immediately preceding year i.e.,, assessment year 2004-05, the shares etc. were shown under the head 'Investment'. In one year prior to that also i.e.,, assessment year 2003-04 the shares were shown under the head 'Investment' in the balance sheet. It can also be seen from these balance sheets for three years that there are no borrowed funds which have been deployed by the assessee for the purchase of shares. Except for capital, there is no other item of loan on the liability side of the balance sheet. It is further observed that the assessment for the immediately preceding year was completed under section 143(3). Copy of the assessment order dated 28-12-2006 for asse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng-term capital gain respectively. The learned counsel has submitted that in the assessment years 2003-04 and 2002-03 also the profit on sale of shares held for less than one year was shown as short-term capital gain which was not disturbed by the revenue, though the assessments were made under section 143(1). 4. The Mumbai Bench of the Tribunal in Gopal Purohit v. Jt. CIT [2009] 122 TTJ 87, a copy of which has been provided by the learned Authorised Representative and is on record, has held that where the nature of activities, modus operandi of the assessee, manner of keeping records and presentation of shares as investment at the year end is same in all the years, there cannot be any reason as to why the claim made by the assessee for tr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....epartment sought to change the treatment to be given to the profit on sale of shares from short-term capital gains to 'Profits and gains of business or profession", which was not allowed by the Tribunal. On the same pattern some other orders have also been placed on record which have the same ratio decidendi. In view of this overwhelming position settled in favour of the assessee and the learned Authorised Representative not bringing on record any contrary view we hold that since in identical circumstances the Revenue authorities have accepted the profit arising from the sale of shares as short-term capital gain in the assessment made under section 143(3), there is no reason as to why a different treatment be given in this year. It is true ....