2013 (11) TMI 119

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....under. 3. We take up appeal for A.Y. 2004-05 i.e. ITA No.2127/M/2008 as a lead appeal and, therefore, discuss the facts and same will apply mutatis-mutandis for the appeal for the next AY as far as applicability of the proposition and law are concerned. 4. In the appeal for the assessment year 2004-05, main issue involved is as to whether capital gain of Rs.33,45,480/- arising out of sale of Shares, Units and Securities through Portfolio Management Services(PMS)is to be assessed under the head "capital gains" or "business income". The ground of appeal taken by assessee-trust reads as under: "1. On the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) erred in confirming the addition Ca....

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....s of business and profession. 6. The assessee-trust is a discretionary trust. The trustees were part of the promoter/ shareholder group of Biddle Sawyer Group where in assessee-trust held shares. From Sept.2003 to May 2004 assessee-trust placed certain funds with portfolio manager. 7. During the assessment year 2003-04, assessee-trust had offered the income derived from PMS under the head "business and profession" while filing the return. But, for the year under consideration assessee-trust offered the income from the said transactions under the head capital gains and vide its letter dated 15.09.2006 addressed to the AO reiterated its claim. The AO did not accept the contention of the assessee-trust and treated the income/earning on P....

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.... Act, which is consequential and does not require any specific adjudication. 12. Now we take up appeal for assessment year 2005-06 being I.T.A. No.4124/M/2008. 13. Grounds of appeal are as under: "1. On the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) erred in confirming the additional Capital Gains arising out of sale of Shares, Units and Securities through Portfolio Management Services of Rs. 54,92,711/- as "Profit and Gains of Business or Profession". Under the facts and circumstances of the case the Learned Commissioner of Income Tax (Appeals) ought to have accepted that a sum of Rs. 45,94,955/- as Short Term Capital Gain, Rs. 1,42,984/- as Speculation Income and Rs. 5,37,0....