2012 (12) TMI 780

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....hat the assessee has shown capital gain and income from dividend, claimed as exempted. The A.O. further noted that all the receipts in the capital account are arising out of transactions in shares and securities but in the computation of income, the assessee bifurcated the credit entries and offered the profits/loss on the sale of shares as short term/long term capital gains. The A.O. summarised the share transactions pertaining to short term capital gain and long tem capital gain as under:-     No. of shares bought and sold 100930 Purchase amount Rs. 1,75,27,090/- Sales amount Rs. 3,36,92,261/- Gain Rs. 1,61,65,171/- Long term capital gains   No. of shares bought and sold 9000 Pur....

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.... the short term capital gain/long term capital gain Rs. 67,93,487/- under the head income from business. 3. On appeal, the ld. CIT(A) following the decision of Mumbai Bench of the Tribunal in the case of Gopal Purohit vs. JCIT, 29 SOT 117 confirmed by the Hon'ble jurisdictional High Court vide judgment dtd. 6-1-2010 and factual findings, directed the A.O. to accept the claim of the appellant by accepting the short term/long term capital gain as admitted by the appellant. 4. Being aggrieved by the order of the ld. CIT(A), the Revenue is in appeal before us taking the following grounds of appeal:-   "1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in directing the A.O. to accept the claim of....

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....ble on record. We find that the ld. CIT(A) vide finding recorded in para 5.1 of his order observed and held as under:- "....It is true that the appellant has earned business income on non delivery based transactions for A.Y.2004-2005 but that does not mean that income earned on sale of shares held as investment can be taxed as business income in the subsequent years. The appellant has made clear distinction between delivery based and non delivery based transactions and admitted income accordingly and except for A.Y.2004-2005, the appellant did not indulge in any non delivery based share transactions. As contended by the representative, even shares purchased as investment had to be sold within a short time depending on the market conditio....