AI Drafter 
TaxTMI 
TaxTMI 
2017 (11) TMI 1417
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....010-11 vide order dated 22-03-2013 under section 143(3) of the Income Tax Act, 1961(hereinafter 'the Act'). 2. The first common issue in this appeal of Revenue is against the order of CIT(A) in directing the AO to treat the profit arising out of purchase and sale of shares as long term capital gain/ short term capital gains as the case may be, instead of business income treated by the Assessing Officer. For this Revenue has raised following ground No.1: - "1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in directing the AO to accept the claim of Short Term Capital Gain of Rs. 2,73,66,432/- and Long Term Capital loss of 11,57,949/- on profit arriving from purchase and 1a.pf shares instead of ....
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....nt % of Total purchase LTCG 1 to 2 years 37,506 5,000,147 97.88 (1,175,326) 2.to 3 years 1,500 108,132 2.12 17,377 3 to 4 years - - - - More than 4 years - - - - 39,006 5,108,279 100 (1,157,949) 4. The AO during the course of assessment proceedings noticed that the assessee has earned a small dividend amount of Rs. 60,147/- of 10.26 lakhs shares, which were purchase for a sum of Rs. 17.23 crores. According to AO, dividend earning is only by chance and shares are hold by assessee for a very less period, accordingly, he held the activity as business and treated the shares capital gain as business income of the assessee. The AO also allowed the long term....
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.... than one year as long term capital asset, itself mandates the need to carefully look into the facts and circumstances of each case to arrive at the correct categorization of the holding pattern to result into either business or capital gains. As can be seen from the entirety of the facts in the present case, the appellant, while certainly making profits from his holdings, cannot be said to be indulged in the business of share trading. Profit motive per se cannot be enough to hold that any short term holding would result in income being classified as business income. Therefore, in light of the above facts, the Income from is held as income from capital gains. The ground of appeal is allowed." Aggrieved, now Revenue is in second appeal be....
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....ct for the year under consideration as compared to the immediate preceding assessment year for which similar activity has been held to be assessable under the head capital gain. There is also no substantial difference in the activities carried out by the assessee in individual capacity vis-à-vis in the capacity of HUF. The assessee did not utilize the borrowed funds for making investment as the entire investment is made out of own capital of the assessee. Keeping in view all these facts, which have been accepted by Ld. CIT(A) by detailed discussion in the case of HUF and also in view of facts of the present case and position depicted in the charts, we are of the opinion that Ld. CIT(A) did not commit any error in granting impugned re....
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....tive, took us through the findings of the AO first and stated that this interest has been disallowed by AO for the reason that the share transaction is treated as business activity. He then took us through the CIT(A)'s finding, wherein CIT(A) has not recorded the facts and passed a cryptic order by observing as under: - "I have gone through the facts and the circumstances of the case and I md that the issue of not allowing it against business income become irrelevant in light of the decision on ground no, 1. The other claim of the appellant that the same should be allowed against income from other sources is found to have merits and is allowable as such. Ground of Appeal is allowed." 9. In view of the above, the learned Departme....