TaxTMI 
TaxTMI 
2018 (11) TMI 1339
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.... sale of shares of M/s. City Parks Pvt Ltd as capital gain when there was a clear cut adventure in the nature of trade on the part of the assessee? ii. Whether on the facts and circumstances of the case and in law, without prejudice to the above ground, the Hon'ble ITAT was justified in holding that the capital gain on account of sale of shares of M/s. City Parks Pvt Ltd is long term capital gain when the underlying asset which got transferred due to sale of shares was 'Land and holding period of which was less than 36 months? iii. Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT was justified in not upholding the finding of the AO that transaction of sale of shares of HCL Technologies Ltd reflec....
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.... the assessment year under consideration. 2.2 During the same period, the assessee had entered into another transaction namely purchasing and sale of HCL Technologies Ltd. Between 28.2.2007 to 13.3.2007, the assessee purchased 4,71,517 shares of the said company for a total consideration (inclusive of brokerage) of Rs. 29.36 Crores (rounded off). On 12.2.2007, HCL Technologies announced bonus issue of shares in the ratio of one share for every one share held and the record date was fixed as 16.3.2007. The assessee, accordingly, received equal number of bonus shares. Later on, between 15.3.2007 to 28.3.2007, the assessee sold 4,71,517 shares of HCL Technologies for a consideration of Rs. 14.28 Crores (rounded off). This resulted into a loss....
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.... therefore, the assessee's claim for set off or loss against the gain was permissible. It is against this order that the Revenue has filed the present Income Tax Appeal. 3. We have heard learned counsel for the parties at considerable length and with their assistance perused the documents on record. With respect to the transaction in the case of City Parks Pvt Ltd, the Tribunal noted that the assessee had not acquired the shares through his own volition. That such shares were held previously by his father and were gifted to the assessee. The father had also held the shares as investment. The Tribunal also noted that City Parks Pvt Ltd was an unlisted Pvt Ltd Company and therefore, its shares were not freely marketable or tradable. The ....
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....s set up any organized structure or infrastructure for his business of trading in shares. The assessee was otherwise full time engaged in other gainful activities. 6. In our opinion, the entire issue hinges on the question whether the transactions in question were in the nature of business transactions or holding of shares by the assessee was purely in the nature of investment. Surely, the Revenue cannot object to legitimate tax planning. Legitimately, if the assessee had claimed set off of loss against the gain in sale of shares, the Revenue cannot frown upon the same simply by pointing out that in the process, the assessee reduced his tax liability. The Tribunal has examined both the transactions extensively. With respect to the first tr....