2014 (7) TMI 507

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

..../2013 is against Smt.Vijaya Srinivasan, W/o. K.Srinivasan. Since common issue is involved in both the cases and the facts are identical, both the appeals are taken up together for adjudication. The common issue raised in both the appeals is; Whether the income arising out of sale of shares is to be treated as business income or it has to be assessed as capital gains? 2. The returns of the assessees for the AY under consideration were processed u/s.143(1) of the Income Tax Act, 1961 (herein after referred to as 'the Act'). Thereafter, in the case of both the assessees, assessment was reopened u/s.147 of the Act. In re-assessment proceedings, the originally admitted Long Term Capital Gain/Short Term Capital Gain on sale of shares was re-ass....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....authorities below as well as the order of the co-ordinate bench of the Tribunal in the case of ACIT Vs.Smt.Vijaya Srinivasan relevant to the AYs.2005-06 & 2008-09 in the appeal of the Revenue in ITA Nos.1846 & 1847/Mds/2012 (supra). We find that the issue in appeal is identical to the one already adjudicated in one of the assessee's case for the AYs.2005-06 & 2008-09. The AY under consideration is of intervening period and there has been no change in the facts and circumstances in the present AY. The Tribunal while adjudicating the issue in the aforesaid appeals had observed as under: "9. The Assessing Officer has given details of transaction of shares in page 3 of the assessment order. The assessee has been dealing with four different sha....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....he one in the instant case. The findings of the Hon'ble Bombay High Court in Gopal Purohit's case is on the facts as no substantial question of law was involved in the said case for the adjudication of the Hon'ble High Court. 11. XXXXXXX 12. XXXXXXX 13. The Mumbai Bench of the Tribunal in the case of Jay Shree Pradip Shah Vs. ACIT., reported as 137 TTJ 173 has laid down the principles to decide the issue as to whether the profit arising from purchase and sale of shares is to be considered as business or capital gain. The relevant extract of the order is reproduced herein below:-  "(a) Whether transactions of sale and purchase of shares were trading transactions or whether they were in the nature of investments is mixed question of ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....fact has any decisive significance and the question must depend upon the collective effect of all the relevant materials brought on record. [Janki Ram Bahadur Ram vs. CIT (1965) 57 ITR 21(SC)]." The Tribunal has laid down the principles after examining various judgements of the Hon'ble Supreme Court of India. After perusing above orders of the Tribunal and the law laid down by the Hon'ble Supreme Court of India and applying the same to the facts of the present case, we do not agree with the findings of the CIT(A) that the profit arising from shares held for more than 30 days is to be considered as short or long term capital gain depending upon the period of holding and that where shares have been purchased and sold in less than 30 days, th....