TaxTMI 
TaxTMI 
2014 (12) TMI 1350
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....rder dated 20th December, 2013 passed by the Income Tax Appellate Tribunal, Indore in a bunch of appeals. 3. The main grievance of the respondent assessee pertains to assessing the profit offered on sale of assets being STT paid on listed shares under the head "income from business" against "income from short term capital gains" under Section 111 (1) (I) of the Income Tax Act, 1961, on which tax is leviable at flat rate of 10%. 4. As the common grounds are involved in the present bunch of appeals, these fourteen appeals were heard together and are now being disposed of by this consolidated order. 5. The assessee filed his income tax return as an individual for the assessment order 200607 on 29.12.2006, declaring total income of Rs.....
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....of the limited company in which he is having substantial interest." 7. The Assessing Officer also took note of Circular No.4/2007 dated 15.06.2007 of the Central Board of Direct Taxes (CBDT), wherein the distinction has been clarified between shares held as 'Stock in Trade' and shares held as 'Investment'. 8. The Assessing Officer relying on the CBDT aforesaid circular, came to the conclusion that the profit derived from the sales of shares amounting to Rs. 88,35,560/was treated as "Business Profit" in place of "Short Term Capital Gain", as shown by the assessee. 9. Being aggrieved by the order of the Assessing officer, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals). The Appellate A....
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....d his own funds / family funds or did not pay any interest and depicted the transactions in shares under investment portfolio. (v) The ITAT emphasized that it is possible for a tax payer to have two portfolios namely, an "Investment Portfolio", comprising of Securities, which are to be treated as capital assets and "Trading Portfolio" comprising of stock in trade which are to be treated as trade assets. No single principle would be decisive and the fact has to be considered in entirety. (vi) The ITAT observed that since the gain has been earned from the delivery based transactions, therefore, respectfully following the decision from Hon'ble Jurisdictional High Court in the case of Shri Om Prakash Suri (supra), there is....
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.... No.346/IND/2013) order dated 30.08.2013. We have perused this order and found that it has been clarified that "if the shares are shown as investment and not as stock in trade, profit arriving from such shares will be capital gains and not business profit". The matter was restored to the Assessing Officer to examine the facts and then decide accordingly. Therefore, this judicial pronouncement may not help the Revenue. The other cases relied upon by the Revenue have also been perused and are of the view that the facts are not identical, therefore, these may no help the Revenue. The Board Circular No.4/2007 dated 15.06.2007 also emphasizes that it is possible for a tax payer to have two portfolios namely, an Investment Portfolio, comprising o....
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.... decision from Hon'ble Jurisdictional High Court in the case of Shri Om Prakash Suri (supra), we do not find any merit in the conclusion drawn by the lower authorities for treating the gains arising out of sale of shares as business income rather than capital gain. Accordingly, we direct the Assessing Officer to treat the gain arising out of sale of shares as capital gains. We direct accordingly." 13. Learned Senior Counsel for the appellant, during the course of arguments, very fairly submitted that the issue involved in this appeal is squarely covered by the decision of this Court in the case of Commissioner of Income Tax v. Om Prakash Suri reported in (2014) 23 ITJ 213 (MP) and in the case of Commissioner of Income Tax v. Om Praka....