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Assistant Commissioner of Income Tax 17(2), Room No.217, 2nd Floor, Piramal Chambers, Parel, Mumbai-400012. Vs. Shri Rajoo V Shah, 14/43 Vashindevi, Behind Don Bosco High School, Matunga, Mumbai-400019
March, 13th 2015
                  ,   " " 

       .. ,                              ,      

               ./I.T.A. No.5098/Mum/2012
             (   / Assessment Year : 2008-09)

Assistant Commissioner of       / Shri Rajoo V Shah,
Income Tax 17(2),               Vs. 14/43 Vashindevi,
Room No.217, 2nd Floor,             Behind Don Bosco High School,
Piramal Chambers, Parel,            Matunga,
Mumbai-400012.                      Mumbai-400019
     ( /Appellant)              ..  (  / Respondent)

          . /   . /PAN/GIR No. :ABBPS2719L

           / Appellant by                  Shri Love Kumar
             / Respondent by               Shri Prakash Pandit

              / Date of Hearing
                                                  : 2.3.2015
             /Date of Pronouncement : 11.3.2015

                              / O R D E R

Per B.R.BASKARAN, Accountant Member:

      The appeal by the Revenue is directed against the order dated

10.5.2012 passed by the ld. CIT(A)-29, Mumbai and it relates to

assessment year 2008-09.

2.    the revenue is aggrieved by the decision of ld.CIT(A) in holding that

the gain realized on sale of shares is to be assessed as "Short      Term
                                     2                    ITA. No.5098/Mum/2012

Capital Gain" (STCG) instead of "business income" as held by the

Assessing Officer.

3.    We have heard the parties and perused the record. The assessee

had declared "Long Term Capital Gain" (LTCG) as well as Short term

Capital Gains (STCG) on sale of shares. The assessee had also received the

dividend income of Rs.2,85,911/-. The AO allowed the claim of LTCG but

held that STCG has to be assessed as business income, since the assessee

conducted the activities in share dealings as a trader.      The ld. CIT(A),

however, held that the assessee is not a trader and he was only investing

in shares. Accordingly, he directed the AO to assess the gains as STCG.

Aggrieved, the Revenue has filed this appeal before us.

4.    Before us, the ld. DR placed strong reliance on the assessment order

whereas the ld. AR strongly supported the order of ld. CIT(A).

5.    The ld. AR further submitted that the assessment of immediately

proceeding three years have been completed u/s 143(3) of the Act and

AO has accepted the STCG declared by the assessee.

6.    We notice that the ld.CIT(A) has granted the relief to the assessee

with the following observations:

      "3.3 I have carefully considered the facts of the case, arguments of
      the Assessing Officers and the written submissions of the Authorised
      Representative of the appellant. The addition made by the Assessing
      Officer cannot be sustained for the following reasons.

            (i) The appellant has made short term investment in shares
            and has mostly stayed invested for periods exceeding two
            months. Only in 9 instances the period of holding is less than
            one month. Even the uncertainties of stock market only an
                                     3                  ITA. No.5098/Mum/2012

            investor can hold the shares for such a long period.

            (ii)  There is no day-to-day trading in shares or any
            speculative transactions.

            (iii)   No interest has been claimed as expenditure.

            (iv) The issue of borrowed capital was not towards trading
            in shares. There were borrowings for investment in IPO.
            There are only two IPO applications. The IPO subscription
            cannot said to be a business. The appellant has applied
            for IPO in Power Grid Corporation and has been allotted
            81968 shares. Only 5000 shares have been sold after 63
            days. The rest of the shares are still in investment portfolio.
            As regards IPO in Mundra Port entire shares of 3269 in
            number has been held as investment in Balance Sheet.

            (v)   The outstanding loan of Rs.5,04,30,065/- does not
            relate to trading in shares. They are for investment in

            (vi) The appellant has disclosed the shares as
            investment in the Balance Sheet and he has consistently
            done so from year to year.

            (vii) The appellant is also supported by the decision of
            Hon'ble Bombay High Court in the case of Gopal Purohit in
            ITA No. 1121 of 2009 wherein it is held that there should
            be uniformity in treatment and consistency when the facts
            and circumstances are identical from year to year.

      From the facts above, it can be seen that appellant is an investor
      in shares and not a trader. Therefore the gain has to be taxed
      as short term capital gain. The treatment given by the Assessing
      Officer is deleted."

7.    Thus, we notice that the assessee has been declaring Short term

Capital gains since last three years and his status as "Investor" has been

accepted by the assessing officer.   Further the Long term capital gains

declared by the assessee has also been accepted.       With regard to the

Short term Capital gains, we notice that the Ld CIT(A) has analysed the
                                          4                 ITA. No.5098/Mum/2012

transactions as per the criteria prescribed by the CBDT/Courts and has

come to the conclusion that the Share transactions carried on by the

assessee fall in the category of Investments. Hence, we do not find any

infirmity in the decision of Ld CIT(A).

8.     In the result, the appeal filed by the revenue is dismissed.

     The above order was pronounced in the open court on 11th Mar, 2015.

                11th March, 2015    

         sd                                         sd

      ( /SANJAY GARG)                         ( ..  / B.R. BASKARAN)
     / JUDICIAL MEMBER                           / ACCOUNTANT MEMBER
  Mumbai: 11th March,2015.

. ../ SRL , Sr. PS

        /Copy of the Order forwarded to :
1.  / The Appellant
2.  / The Respondent.
3.       () / The CIT(A)- concerned
4.        / CIT concerned
5.        ,     ,  /
       DR, ITAT, Mumbai concerned
6.       / Guard file.
                                                        / BY ORDER,
               true copy
                                                  (Asstt. Registrar)
                                    ,  /ITAT, Mumbai
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