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The Tax Publishers ITO v. Shri Tejas J. Amin [ITA No. 168/Ahd/2012, dt. 4-4-2016] : 2016 TaxPub(DT) 1724 (Ahd-Trib) Capital gain or business income *Facts:* Assessee had income from salary, business loss, speculation income and short-term capital gains from shares. Assessing officer held that the short-term capital gain is to be treated as business income. Assessees plea was until financial year 2007-08 what ever investments were made they were shown as capital gain as the intent was investment and thereafter what ever was in trading of shares was offered as business income. Unimpressed the STCG was read as business income. On appeal Commissioner (Appeals) allowed the plea of assessee holding: STCG arose only from a small number of transactions. The STCG arose out of the shares of financial year 2007-08 or before. Intent and disclosure was also as investment. CBDT Circular 4/2007 since then law has changed - one can have two portfolios viz. as investment and as trading Aggrieved revenue went in appeal to ITAT: Held in favour of the assessee that the income was STCG. There was no intra day trading. Holding period was around 2-5 months and upto 300 days. Speculation business income was offered separately. STCG arose out of delivery based transactions. Opening balance was investment and not stock in trade. Since there was clear demarcation by the assessee it was STCG and not business income.

The Tax Publishers

ITO v. Shri Tejas J. Amin [ITA No. 168/Ahd/2012, dt. 4-4-2016] : 2016 TaxPub(DT) 1724 (Ahd-Trib)

Capital gain or business income

Facts:

Assessee had income from salary, business loss, speculation income and short-term capital gains from shares. Assessing officer held that the short-term capital gain is to be treated as business income. Assessees plea was until financial year 2007-08 what ever investments were made they were shown as capital gain as the intent was investment and thereafter what ever was in trading of shares was offered as business income. Unimpressed the STCG was read as business income. On appeal Commissioner (Appeals) allowed the plea of assessee holding:

STCG arose only from a small number of transactions. The STCG arose out of the shares of financial year 2007-08 or before. Intent and disclosure was also as investment. CBDT Circular 4/2007 since then law has changed - one can have two portfolios viz. as investment and as trading

Aggrieved revenue went in appeal to ITAT:

Held in favour of the assessee that the income was STCG. There was no intra day trading. Holding period was around 2-5 months and upto 300 days. Speculation business income was offered separately. STCG arose out of delivery based transactions. Opening balance was investment and not stock in trade. Since there was clear demarcation by the assessee it was STCG and not business income.