Alpana M Motla, Mumbai vs. DCIT 12(3), Mumbai
In the result, the appeal of the assessee is allowed
ITA 1937/MUM/2013[2008-09]Status: DisposedITAT Mumbai19 Oct 2016AY 2008-09
Bench: Sri Mahavir Singh, Jm & Sri Ramit Kochar, Am Smt. Alpana M Motla, C/O. Vs. The Dy. Commissioner Of Income Roopkala, 89, M. K. Marg, Queens Tax- 12(3), Chambers, Mumbai 400 020 Mumbai Pan:Aahmp 7319P Appellant .. Respondent Appellant By .. Shri K. Shivaram, Ar Respondent By .. Shri A. K. Dhondial, Sr. Dr Date Of Hearing .. 19-10-2016 .. Date Of Pronouncement 19- 10- 2016 O R D E R Per Mahavir Singh, Jm: This Appeal By The Assessee Is Arising Out Of The Order Of The Cit (Appeals)-24, Mumbai In Appeal No.Cit(A)-24/Dcit-12(3)/It-105/11-12 Dated 03-12-2012. Assessment Was Framed By The Dcit-12(3), Mumbai For The Assessment Year 2008-09 Vide His Order Dated 14-12-2010 U/S 143(3) Of The Income Tax Act, 1961 (Hereinafter ‘The Act’). 2. The Only Issue In This Appeal Of The Assessee Is Against The Order Of The Cit (A) In Confirming The Action Of The Ao In Treating The Excess Arising Out Of Sale Of Shares As Business Income Instead Of Treating The Same As Short Term Capital Gain As Declared By The Assessee. 3. Briefly Stated Facts Are That The Assessee Is Deriving Income From Futures & Options I.E. Derivatives From Long Term Capital Gain & Short Term Capital Gain From Sale Of Shares, Income From Other Sources & Also Profit From Speculation Business. During The Course Of Assessment Proceedings The Ao Required The Assessee To Explain As To Why Income From Short Term Capital Gain Should Not Be Treated As Income From Business. The Assessee Filed Explanation Before The Ao But The Ao Noted That The Assessee Is Engaged In Systematic Activities Of Sale & Purchase Of Shares & The Shares Are Sold Within A Period Of One Day To 200 Days & Hence, The Same Partakes The Character Of Share Trading. Hence, He Treated The Short Term Capital Gain Declared By The Assessee Amounting To Rs.50,35,193/- As Business Income. Aggrieved, The Assessee Preferred Appeal
Section 143Section 143(1)Section 143(3)
…t disputed the issue of long term capital gain. They have only changed the head of income of short term capital to the head of business income. In this case, we following the decision of the Hon’ble Bombay High Court in the case of CIT Vs Gopal Purohit (2011) 336 ITR 287 it was held as under that:- “while dealing with the similar issue, that it was open to the assessee to maintain two separate portfolios, one relating to investment in shares and another relating to business of dealing in shares. It was also held that there should be uniformity in treatment given to such transactions in shares and the rule of con…
