2017 (3) TMI 1331

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.... the action  of AO holding ST Capital Gains as business income overlooking consistent treatment of the appellant of the gains made on investments. 2. The Learned CIT(A) erred in facts and circumstances of the case and in law in confirming disallowance made by AO Under Section 14A of The Income Tax Act 1961 3. The Learned CIT(A) erred in facts and circumstances of the case and in law in not adjudicating ground seeking rebate U/s 88E in the event STCG declared by the appellant is held as business income. 2. Brief facts of the case are that the assessee filed its return of income for relevant AY on 04.10.2010 declaring total income at Rs. 98,82,190/-. The assessment was completed u/s 143(3) of the Act on 24.02.2014. T....

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....g, the AO observed that assessee disclosed STCG of Rs. 99,15,619/-. Out of the total available capital of Rs. 2.06 Crore, the assessee  invested Rs. 1.48 Crore in share and securities. The assessee had dealt with 14 securities. After considering the period of holding, frequency of transaction, quantum of turnover, the AO concluded that the assessee is indulge in trading of share and the profit derived from such trading including sale of LTCG and STCG was treated as "Business Income". On appeal before the ld. CIT(A), the action of AO was confirmed, the ld. CIT(A) also concluded that assessee is involved in the trading of share and not investor and the transaction are clearly in the nature of business transaction. We have seen that the a....

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.... 10 RENUKA 0 -39813 0 0 0 0 0 0 -39813 11 SHREE PRECO 0 0 0 0 0 0 0 0 0 12 VIMTALAB S 0 4860 -19835 0 0 0 0 0 -14975 13 VOLTAS 0 0 0 6743 0 0 0 0 6743 14 WELSPUNI ND 0 0 -233 0 0 0 0 0 -233 15 WINDSOR 0 0 186 0 0 0 0 0 0186 &....

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.... taxable under the head 'profit and gains from business and profession'; the said income can only be taxed as 'capital gains'. In view of these discussions, and bearing in mind entirety of the case, we deem it fit and proper to direct the Assessing Officer to tax the income on sale of shares as capital gains. We direct so. 6. Considering the decision of coordinate bench, when the share sold in the current year was carried forward and the substantial gain was earned by the assessee only from sale of two scripts. And for earlier years the Revenue has accepted the STCG on similar transaction,  in our considered opinion, the income earned by assessee can only be taxed as "Capital Gain". Hence, the ground no.1 raised by a....