TaxTMI 
TaxTMI 
2017 (2) TMI 847
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....-appeal will be filed against the final order of the CIT(A) i.e. the order impugned herein as well any order passed under section 154 of the Act. Under this misconception of law, the appeal was not filed within the time. On the strength of this explanation, the delay in filing of appeal has been prayed to be condoned. 3. The ld.DR on the other hand, contended that the assessee did not give any plausible explanation for condonation of delay, and therefore, delay in filing the appeal be not condoned. 4. We have duly considered rival contentions and gone through the record. Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross-objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression "sufficient cause" employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the ld.Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and con....
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....gal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of de....
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.... made huge investment in shares. According to the AO, she had a starting capital of Rs. 11 lakhs and from that capital, she earned a profit of Rs. 13 lakhs thereby reporting capital to turnover ratio of 218%. The ld.AO has made reference to CBDT Circular No.1827 and other factors i.e. frequency of transaction and volume of the transaction and treated the assessee as a trader. We are not devoting our energy for highlighting the finding of the AO, because the ld.CIT(A) has accepted the assessee as an investor partly, and that finding of the ld.CIT(A) has not been challenged. In brief, the ld.AO has treated the assessee as a trader. He assessed the income shown by the assessee as a short term capital gain as business income. He disallowed the expenses paid on STT. 10. Dissatisfied with the disallowance, the assessee carried the matter in appeal before the ld.CIT(A) and filed written submissions. The ld.CIT(A) has reproduced written submission and thereby concurred with the assessee in principle. The ld.CIT(A) has followed the order of the ITAT in the case of Sugamchand C. Shah (HUF) Vs. DCIT, (2016) 75 taxmann.com 105 and observed that transactions where shares were held by the ass....
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....ppellant, much before the sale of these shares, is clearly as capital assets as against stock-in-trade. Considering all these facts, only number of transactions cannot determine the nature of appellant's income from share transaction. With the above findings tribunal held that these proved the real intention to hold these shares as investments and for these reasons the assessee had not claimed any loss on account of depreciation in value of shares on the Balance sheet date. Tribunal further noted that apart from the fact that the assessee was a share broker and having good knowledge of share market, the revenue was not able to bring on record any other fact to prove that the impugned shares was held by the assessee was "stock-in-trade". Tribunal allowed the appeal of the assessee. In the case of appellant also the share transactions were kept as 'Investment' on the Balance sheet and the same were not routed from " Profit & Loss account" and the investment was not valued as on Balance Sheet date taking into consideration the depreciation in the cost of the shares held as investment on the date of Balance sheet. : "Appellant is also an investor. Facts of the a....
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....stances, be in a position to produce evidence from its records as to whether it has maintained any distinction between those shares which are its stock-intrade and those which are held by way of investment. In the case of Commissioner of Income Tax, Bombay Vs H, Holck Larsen (160 ITR 67), the Supreme Court observed: The High Court, in our opinion, made a mistake in observing whether transactions of sale and purchase of shares were trading transactions or whether these were in the nature of investment was a question of law. This was a mixed question of law and fact. The principles laid down by the Supreme Court in the above two cases afford adequate guidance to the assessing officers. The Authority for Advance Rulings (AAR) (288 ITR 641), referring to the decisions of the Supreme Court in several cases, has culled out the following principles:- (i) Where a company purchases and sells shares, it must be shown that they were held as stock-in-trade and that existence of the power to purchase and sell shares in the memorandum of association is not decisive of the nature of transaction; (ii) the substantial nature of transactions, the manner of maintaining books of acco....
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....at shares/debentures, etc. held for business as under the head 'stock-in-trade' and others as 'investments'. * Shares held as 'stock-in-trade' were being valued by the assessee at lower of cost or market price; whereas, the shares held as investment were valued at cost. In view of the above, your appellant, in the interest of justice, prays hereby that the A.O. be directed to assess the short term capital gain and levy tax as per the provisions of section 111 A of the I.T. Act. 1961. Reliance was placed on- the decisions of the Hon'ble: 1. J M SHARE & STOCK BROKERS LTD Vs. JT. CIT (2008) 2. ACIT V/S. MOTILAL OSWAL IN ITA NO.3860/MUM/2001 FOR A.Y. 1993-94. 3. Gopal Purohit V/s. JCIT - ITA. No. 4854 / MUM/2008 4. Circular No. 4/2007 dated 15/06/2007 issued by CBDT". 2.3. I have considered the submissions of the learned Authorized Representative and the order of the Assessing Officer. It is to be noted that frequency and volume of transaction is quite substantial and it cannot be completely ignored. There are very frequent intra-day transactions and sometimes shares are held for longish period. The volume of transaction which is more th....
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....nsaction. The ld.CIT(A) has made reference to the decision of the ITAT in the case of Sugamchand C. Shah. On due consideration of this finding, we are of the view that in principle ld.CIT(A) has accepted status of the assessee as investor also. It has also been explained that the assessee was maintaining two portfolios. There is no provision in the Income Tax Act which can authorize the authority to draw a line i.e. shares held less than 30 days would be treated as a business transaction. An assessee is either an investor or trader. His status cannot be changed on the basis of the transactions where shares were held below a particular number of days. There is no such provision in the Act. Thus, the ld.CIT(A) has erred in creating an artificial line between transactions. The Revenue has not challenged the finding of the ld.CIT(A) qua treating the assessee as an investor. Therefore, we partly allow the appeal of the assessee and modify the order of the CIT(A). The transactions in respect of shares held by the assessee less than 30 days should also be treated as a transaction of investment. In other words, short term capital gain shown by the assessee is to be accepted. 13. In grou....