Addl. CIT, Range-3, Nashik V. Shri Jawaharlal Premraj Mehta, Nashik

ITA 2099/PUN/2012

• Counselvise Citation: 209924514 RSA 2012
• Duration Of Justice: 2 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-02-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 29-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJIB JAIN
• Keywords: Business income; Question of law
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.2099/PN/2012 (ASSESSMENT YEAR : 2007-08) ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-3, MALEGAON. . APPELLANT VS. SHRI JAWAHARLAL PREMRAJ MEHTA, PARAS BUILDING, NEHRU ROAD, SATANA, TAL. SATNA, DIST. NASHIK 423 301. PAN : ABFPM6605H . RESPONDENT DEPARTMENT BY : SHRI RAJIB JAIN ASSESSEE BY : SHRI NIKHIL PATHAK DATE OF HEARING : 03-02-2015 DATE OF PRONOUNCEMENT : 20-02-2015 ORDER PER G. S. PANNU, AM THE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGA INST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, NASHIK DATED 30.08.2012 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 16.1 1.2009 PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2007-08. 2. BY WAY OF THE PRESENT APPEAL, REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1) THE CIT(A) HAS ERRED IN DELETING THE ADDITION M ADE BY THE ASSESSING OFFICER OF RS.25,64,710/- ON ACCOUNT OF B USINESS INCOME AND TREATING THE SAME AS LONG TERM CAPITAL GAIN. 2) THE CIT(A) HAS ERRED IN TREATING THE AMOUNT OF R S.21,01,453/- AS SHORT TERM CAPITAL GAIN OUT OF RS.33,30,032/- AS SESSED BY THE A.O. AS BUSINESS INCOME. 3) THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE INC OME DERIVED FROM TRADING OF SHARE IS TO BE TREATED AS SHORT TER M/LONG TERM CAPITAL GAIN INSTEAD OF BUSINESS INCOME. 4) THE LD. CIT(A) HAS ERRED IN APPRECIATING THE FAC T OF VOLUME OF TRADING, FREQUENCY OF TRADING, INTENTION OF THE ASS ESSEE ETC. WHICH CLEARLY ITA NO.2099/PN/2012 SHOWS THAT THE ACTIVITY OF PURCHASE AND SALE OF SHA RES IS TRADING OF SHARES AND INCOME DERIVED FROM TRADING OF SHARES IS TO BE TREA TED AS INCOME FROM BUSINESS. 3. AT THE TIME OF HEARING, THE LD. REPRESENTATIVE F OR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT IDENTICAL CONTROVERSY IN THE CASE OF THE ASSESSEE FOR AN EARLIER ASSESSMENT YEAR 2005-06 WAS A SUBJECT-MATTE R OF CONSIDERATION OF THE PUNE BENCH OF THE TRIBUNAL IN ITA NO.1463/PN/2008 D ATED 29.11.2013. THE LD. REPRESENTATIVE SUBMITTED THAT THE PRESENT APPEA L OF THE REVENUE BE DISPOSED-OFF IN THE LIGHT OF THE AFORESAID PRECEDEN T, WHICH CONTINUES TO HOLD THE FIELD. 4. THE AFORESAID FACTUAL MATRIX HAS NOT BEEN DISPUT ED BY THE LD. DEPARTMENTAL REPRESENTATIVE APPEARING FOR THE REVEN UE. 5. IN THE PRESENT APPEAL, DISPUTE RELATES TO THE AC TION OF THE ASSESSING OFFICER IN TREATING THE LONG TERM/SHORT TERM CAPITA L GAIN ON SALE OF SHARES AS BUSINESS INCOME. THE ASSESSEE HAD DECLARED GAIN ON SALE OF SHARES AS LONG TERM OR SHORT TERM CAPITAL GAIN DEPENDING ON THE PE RIOD OF HOLDING. THE CIT(A) HAS ALLOWED PARTIAL RELIEF WHEREBY THE LONG TERM CA PITAL GAIN ON SALE OF SHARES HAS BEEN HELD TO BE ASSESSABLE UNDER THE CAPITAL GA INS AS AGAINST THE BUSINESS INCOME CONSIDERED BY THE ASSESSING OFFICER . WITH REGARD TO THE SHORT TERM CAPITAL GAIN, THE CIT(A) NOTICED THAT SO FAR AS THE INTRADAY TRADING IN SHARES AND FUTURES AND OPTIONS ARE CONCERNED THE SA ME HAS BEEN DECLARED BY THE ASSESSEE AS BUSINESS ACTIVITY AND OFFERED TO TA X AS BUSINESS INCOME. WITH REGARD TO THE BALANCE OF THE SHORT TERM CAPITAL GAI NS, ASSESSEE RAISED A PLEA BEFORE THE CIT(A) CONTENDING THAT EVEN THE SURPLUS ON SALE OF SHARES HELD FOR LESS THAN 9 MONTHS BE TREATED AS BUSINESS INCOME TO AVOID PROTRACTED LITIGATION. AS A CONSEQUENCE, THE CIT(A) HELD THAT OUT OF THE TOTAL SHORT TERM CAPITAL GAIN AT RS.33,30,032/- DECLARED BY THE ASSE SSEE, A SUM OF RS.12,28,579/- BE TAXED AS BUSINESS INCOME AND THE BALANCE OF ITA NO.2099/PN/2012 RS.21,01,453/- BE TAXED AS SHORT TERM CAPITAL GAIN. THE AFORESAID DECISION OF THE CIT(A) IS CHALLENGED BY THE REVENUE IN APPEAL B EFORE US. 6. IN ASSESSMENT YEAR 2005-06, THE TRIBUNAL VIDE IT S ORDER DATED 29.11.2013 (SUPRA) HAS HELD AS UNDER :- 9. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE WHO IS A RETIRED EMPLOYEE, HAS INDULGED IN PURCHASE AND SALE OF SHARES OF A NUMBER OF SCRIPS OF VARIOUS COMPANIES. DUE TO THE VOLUME, FREQUENCY, REPETITIVENESS AND UTILISATION OF BORROWED FUNDS FO R PURCHASE OF SHARES THE ASSESSING OFFICER CONSIDERED THE INCOME FROM PURCHA SE AND SALE OF SHARES AS BUSINESS INCOME AS AGAINST LONG TERM AND SHORT TERM CAPITAL GAIN DECLARED BY THE ASSESSEE WHICH HAS BEEN UPHELD BY THE CIT(A). 9.1 IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE IS SHOWING THE SHARES AS INVESTMENT IN THE BALANCE SHEET, HE IS NOT A TRADER IN SHARES, HE WAS PAYING HIGHER TAX ON CAP ITAL GAIN ON ACCOUNT OF PURCHASE AND SALE OF SHARES IN THE PAST AND THE DEP ARTMENT HAS NEVER TREATED THE ASSESSEE AS A TRADER. IT IS ALSO THE SUBMISSIO N OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE DIVIDEND INCOME OF RS.5,30,980/- OUT OF THE TOTAL INCOME OF RS.42,40,838/- WHICH IS MORE THAN 10% OF THE TOTAL INCOME SHOWS THAT THE ASSESSEE IS BASICALLY AN INVESTOR AND NOT A TRADER. 9.2 WE FIND SOME FORCE IN THE ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE. IT IS NOW THE SETTLED PROPOSITION OF LAW THAT WHETHER THE ACTIVITY OF BUYING AND SELLING OF SHARES IS IN THE NATURE OF TR ADE OR INVESTMENT IS A MIXED QUESTION OF LAW AND FACT AND EVERY CASE DEPENDS ON ITS OWN SETS OF FACTS. IN THE INSTANT CASE, THERE IS NO DISPUTE TO THE FACT T HAT THE ASSESSEE HAS SHOWN LONG TERM CAPITAL GAIN AND SHORT TERM CAPITAL GAIN ON ACCOUNT OF PURCHASE AND SALE OF SHARES SINCE LAST SO MANY YEARS WHICH HAS B EEN ACCEPTED BY THE DEPARTMENT. THE SUBMISSION OF THE ASSESSEE BEFORE THE LOWER AUTHORITIES THAT THE SHARES HAVE BEEN VALUED AT COST AND NOT AT COST OR MARKET VALUE, WHICHEVER IS LESS HAS NOT BEEN CONTROVERTED BY THE REVENUE. IN OUR OPINION, MERE MAGNITUDE OF THE TRANSACTION DOES NOT CHANGE T HE NATURE OF TRANSACTION, WHICH ARE BEING ASSESSED AS INCOME FROM CAPITAL GAI NS IN THE PAST SEVERAL YEARS. 9.3 WE FIND THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MANAGEMENT STRUCTURE AND SYSTEMS PVT. LTD. (SUPRA) HAS HELD AS UNDER : 15. WE HAVE GIVEN OUR SERIOUS CONSIDERATIONS TO T HE DIFFERENT PRECEDENTS RELIED ON BY THE A.O IN THE ASSESSMENT O RDER, BUT IN OUR OPINION, THE PRINCIPLES LAID DOWN IN THOSE DECISION S CANNOT BE APPLIED TO THE ASSESSEE'S CASE TO SAY THAT THE ACTIVITY OF THE ASSESSEE BUYING AND SELLING OF THE SHARES AMOUNT TO TRADING ACTIVITY. IT IS WELL SETTLED PRINCIPLE AS HAS HELD IN THE CASE OF H. HOLSCK LARZEN (SUPRA) TH AT WHETHER THE ACTIVITY OF BUYING AND SELLING OF THE SHARES IS IN THE NATURE O F TRADE AND INVESTMENT. IT IS A MIXED QUESTION OF LAW AND FACT. IN THIS CASE, WE HAVE PERUSED THE BALANCE SHEET FILED BY THE ASSESSEE AND AS PER THE BOOKS OF ACCOUNT, THE ASSESSEE HAS TREATED THE ENTIRE INVESTMENT IN THE S HARES AS AN INVESTMENT ONLY AND NOT AS A STOCK IN TRADE. ANOTHE R IMPORTANT ASPECT TO ITA NO.2099/PN/2012 BE CONSIDERED HERE IS THE ASSESSEE IS NOT A SHARE B ROKER NOR HE IS HAVING A REGISTRATION WITH ANY STOCK EXCHANGE. MOREOVER, SOME SCRIPTS ARE HELD FOR MORE THAN FIVE YEARS AND IT IS NOT A CASE OF TH E A.O THAT THERE WERE ANY DERIVATIVE TRANSACTIONS BY THE ASSESSEE NOR IS IT A CASE OF THE A.O THAT THERE WERE TRANSACTIONS WITHOUT ANY DELIVERY. IN TH E PRESENT CASE, BOTH THE AUTHORITIES HAVE NOT DISPUTED THAT THE TRANSACT IONS ARE COMPLETED WITH THE DELIVERY. THE INTENTION OF THE ASSESSEE CANNOT BE READ FROM HIS MIND BUT IT REFLECTS IN ITS CONDUCT, THE WAY HE TREATS T HE TRANSACTIONS. THE ASSESSEE HAS NOT BORROWED ANY MONEY FOR INVESTING I N SHARES AND USED HIS OWN SURPLUS FUNDS AND THESE FACTS HAVE NOT BEEN DIS PUTED BY THE A.O. THE PROPOSITION HAS BEEN ACCEPTED BY THE BOARD ALSO IN CIRCULAR NO. 4/ 2007 THAT THE ASSESSEE IS ENTITLED TO MAINTAIN TWO PORTF OLIOS. IN THE CASE OF THE ASSESSEE, IN THE PRECEDING YEARS, THE ASSESSEE IS CONSISTENTLY DECLARING THE GAIN/PROFIT ON THE SALE OF THE SHARES UNDER THE HEAD 'CAPITAL GAIN' EITHER LONG TERM AND SHORT TERM AND THE SAME HAS BEEN ACCEPTED BY THE A.O. IT IS TRUE THAT THE RULE OF RES JUDICATA I S NOT APPLICABLE TO THE INCOME TAX PROCEEDINGS, BUT AT THE SAME TIME, IT IS ALSO WELL SETTLED PRINCIPLES THAT IF THERE IS NO CHANGE IN THE FACTS, THEN, THERE SHOULD BE CONSISTENCY IN THE APPROACH OF THE REVENUE AUTHORIT IES WHILE DECIDING THE TAX LIABILITY OF THE ASSESSEE. 16. ANOTHER ASPECT TO BE CONSIDERED HERE IS THAT T HE ASSESSEE HAS RECEIVED THE SUBSTANTIAL DIVIDEND AND THAT IS ALSO DISCLOSED. AFTER CONSIDERING THE TOTALITY OF THE FACTS, WE ARE OF TH E OPINION THAT THE TRANSACTIONS OF SALE AND PURCHASE OF THE SHARES BY THE ASSESSEE CANNOT BE TREATED IN THE LINE OF TRADING IN THE SHARES NOR IT CAN BE TREATED AS AN ADVENTURE IN THE NATURE OF THE TRADE. FOR THE REASO NS GIVEN HEREIN-ABOVE, WE HOLD THAT THE ENTIRE INCOME FROM THE SALE AND PU RCHASE OF THE SHARES IS TO BE ASSESSED UNDER THE HEAD 'CAPITAL GAIN' AS RIG HTLY DECLARED BY THE ASSESSEE EITHER LONG TERM CAPITAL GAIN (LTCG) OR SH ORT TERM CAPITAL GAIN (STCG) DEPENDING UPON THE PERIOD OF HOLDING, W E, THEREFORE, DIRECT THE A.O TO ACCEPT THE CAPITAL GAINS DECLARED BY THE ASS ESSEE FROM THE SALE OF THE SHARES AND ACCORDINGLY, SET ASIDE THE ORDER OF THE LD CIT(A). 9.4 WE FIND THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF JANAK S. RANGWALLA (SUPRA) AT PARA 7 OF THE ORDER HAS OBSER VED AS UNDER : 7. IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE IS HOLDING THE SHARES AS INVESTMENT FROM YEAR TO YEAR. IT IS THE INTENTION OF THE ASSESSEE WHICH IS TO BE SEEN TO DETERMINE THE NATUR E OF TRANSACTION CONDUCTED BY THE ASSESSEE. THOUGH THE INVESTMENT IN SHARES IS ON A LARGE MAGNITUDE BUT THE SAME SHALL NOT DECIDE THE N ATURE OF TRANSACTION. SIMILAR TRANSACTIONS OF SALE AND PURCH ASE OF SHARES IN THE PROCEEDING YEARS HAVE BEEN HELD TO BE INCOME FR OM CAPITAL GAINS BOTH ON LONG-TERM AND SHORT-TERM BASIS. THE TRANSAC TION IN THE YEAR UNDER CONSIDERATION ON ACCOUNT OF SALE AND PURCHASE OF SHARES IS SAME AS IN THE PRECEDING YEARS AND THE SAME MERITS TO BE ACCEPTED AS SHORT-TERM CAPITAL GAINS. THERE IS NO BASIS FOR TREATING THE ASSESSEE AS A TRADER IN SHARES, WHEN HIS INTENTION WAS TO HOLD THE SHARES IN INDIAN COMPANIES AS AN INVESTMENT AND NOT AS STOCK-IN- TRADE. THE MERE MAGNITUDE OF THE TRANSACTION DOES N OT CHANGE THE NATURE OF TRANSACTION, WHICH ARE BEING ASSESSED AS INCOME FROM CAPITAL GAINS IN THE PAST SEVERAL YEARS. THE AO IS DIRECTED TO SET OFF THE LONG-TERM CAPITAL LOSS AGAINST THE SHORT-TERM C APITAL GAIN OF THE YEAR UNDER CONSIDERATION. THE GROUNDS OF APPEAL RAI SED BY THE ASSESSEE ARE ALLOWED. ITA NO.2099/PN/2012 9.5 WE FIND THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF GOPAL PUROHIT (SUPRA) HAS HELD AS UNDER : 2. THE TRIBUNAL HAS ENTERED A PURE FINDING OF FACT THAT THE ASSESSEE WAS ENGAGED IN TWO DIFFERENT TYPES OF TRAN SACTIONS. THE FIRST SET OF TRANSACTIONS INVOLVED INVESTMENT IN SHARES. THE SECOND SET OF TRANSACTIONS INVOLVED DEALING IN SHARES FOR THE PUR POSES OF BUSINESS (DESCRIBED IN PARA 8.3 OF THE JUDGMENT OF THE TRIBU NAL AS TRANSACTIONS PURELY OF JOBBING WITHOUT DELIVERY). THE TRIBUNAL H AS CORRECTLY APPLIED THE PRINCIPLE OF LAW IN ACCEPTING THE POSITION THAT IT IS OPEN TO AN ASSESSEE TO MAINTAIN TWO SEPARATE PORTFOLIOS, ONE R ELATING TO INVESTMENT IN SHARES AND ANOTHER RELATING TO BUSINE SS ACTIVITIES INVOLVING DEALING IN SHARES. THE TRIBUNAL HELD THAT THE DELIVERY BASED TRANSACTIONS IN THE PRESENT CASE, SHOULD BE TREATED AS THOSE IN THE NATURE OF INVESTMENT TRANSACTIONS AND THE PROFIT RE CEIVED THEREFROM SHOULD BE TREATED EITHER AS SHORT-TERM OR, AS THE C ASE MAY BE, LONG- TERM CAPITAL GAIN, DEPENDING UPON THE PERIOD OF THE HOLDING. A FINDING OF FACT HAS BEEN ARRIVED AT BY THE TRIBUNAL AS REGA RDS THE EXISTENCE OF TWO DISTINCT TYPES OF TRANSACTIONS NAMELY, THOSE BY WAY OF INVESTMENT ON ONE HAND AND THOSE FOR THE PURPOSES OF BUSINESS ON THE OTHER HAND. QUESTION (A) ABOVE, DOES NOT RAISE ANY SUBSTA NTIAL QUESTION OF LAW. 3. INSOFAR AS QUESTION (B) IS CONCERNED, THE TRIBU NAL HAS OBSERVED IN PARA 8.1 OF ITS JUDGMENT THAT THE ASSES SEE HAS FOLLOWED A CONSISTENT PRACTICE IN REGARD TO THE NATURE OF THE ACTIVITIES, THE MANNER OF KEEPING RECORDS AND THE PRESENTATION OF SHARES A S INVESTMENT AT THE END OF THE YEAR, IN ALL THE YEARS. THE REVENUE SUBMITTED THAT A DIFFERENT VIEW SHOULD BE TAKEN ,FOR THE YEAR UNDER CONSIDERATION, SINCE THE PRINCIPLE OF RES JUDICATA IS NOT APPLICABLE TO ASSESSMENT PROCEEDINGS. THE TRIBUNAL CORRECTLY ACCEPTED THE PO SITION THAT THE PRINCIPLE OF RES JUDICATA IS NOT ATTRACTED SINCE EA CH ASSESSMENT YEAR IS SEPARATE IN ITSELF. THE TRIBUNAL HELD THAT THERE OU GHT TO BE UNIFORMITY IN TREATMENT AND CONSISTENCY WHEN THE FACTS AND CIRCUM STANCES ARE IDENTICAL, PARTICULARLY IN THE CASE OF THE ASSESSEE . THIS APPROACH OF THE TRIBUNAL CANNOT BE FAULTED. THE REVENUE DID NOT FURNISH ANY JUSTIFICATION FOR ADOPTING A DIVERGENT APPROACH FOR THE ASSESSMENT YEAR IN QUESTION. QUESTION (B), THEREFORE, DOES NO T ALSO RAISE ANY SUBSTANTIAL QUESTION. 9.6 SINCE THE FACTS OF THE INSTANT CASE ARE IDENTIC AL TO THE FACTS OF THE CASES CITED ABOVE, THEREFORE, RESPECTFULLY FOLLOWIN G THE DECISIONS CITED (SUPRA) AND CONSIDERING THE TOTALITY OF THE FACTS OF THE CA SE, WE ARE OF THE CONSIDERED OPINION THAT THE INCOME FROM PURCHASE AND SALE OF S HARES BY THE ASSESSEE HAS TO BE TREATED AS INCOME FROM SHORT TERM CAPITAL GAIN OR LONG TERM CAPITAL GAIN AS THE CASE MAY BE AS AGAINST BUSINESS INCOME TREATED BY THE ASSESSING OFFICER AND UPHELD BY THE CIT(A). HOWEVER, SINCE T HE ASSESSEE HAS AVAILED SOME BORROWED FUNDS AND HAS SUBMITTED BEFORE THE AS SESSING OFFICER THAT HE HAS NO OBJECTION TO CONSIDER THE PROFITS FROM SHARE TRANSACTION OF THE SHORTEST PERIOD TO BE INCOME FROM BUSINESS, THEREFORE, WE HO LD THAT THE INCOME FROM PURCHASE AND SALE OF SHARES WITH HOLDING PERIOD OF LESS THAN 30 DAYS AT RS.4,22,935.76 (THE DETAILS OF WHICH ARE FILED AT P APER BOOK 58 TO 62) SHOULD BE TREATED AS BUSINESS INCOME. THE REMAINING AMOUN T HAS TO BE TREATED AS LONG TERM CAPITAL GAIN OR SHORT TERM CAPITAL GAIN A S THE CASE MAY BE. THE ORDER OF THE CIT(A) IS MODIFIED TO THIS EXTENT AND THE GROUNDS RAISED BY THE ASSESSEE ARE PARTLY ALLOWED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ITA NO.2099/PN/2012 7. AS PER THE AFORESAID ORDER OF THE TRIBUNAL, ASSE SSEE HAS BEEN HELD TO BE AN INVESTOR IN THE SHARES AND NOT A TRADER IN SH ARES AND THEREFORE IN SO FAR AS THE GAIN ON SHARES HELD FOR MORE THAN 12 MONTHS IS CONCERNED, IT WAS DIRECTED TO BE ASSESSED AS A LONG TERM CAPITAL GAIN . WITH RESPECT TO THE PROFIT DERIVED FROM SHARE TRANSACTION OF LESS THAN 30 DAYS PERIOD, THE TRIBUNAL DIRECTED THAT THE SAME BE ASSESSED AS INCOME FROM B USINESS. IN THIS CONTEXT, THE TRIBUNAL HELD THAT INCOME FROM PURCHASE IN SHAR ES, WHERE THE HOLDING PERIOD IS OF LESS THAN 30 DAYS, BE TREATED AS BUSIN ESS INCOME AND THE BALANCE OF THE GAIN RELATING TO SHARES HELD UP TO 12 MONTHS BE TREATED AS A SHORT TERM CAPITAL GAIN. THE AFORESAID DECISION OF THE TRIBUN AL SQUARELY COVERS THE CONTROVERSY BEFORE US. THOUGH, IN THE INSTANT ASSE SSMENT YEAR, THE CIT(A) HAS HELD THAT SURPLUS OF PURCHASE AND SALE OF SHARE S WITH A HOLDING PERIOD FOR LESS THAN 9 MONTHS BE TREATED AS BUSINESS INCOME AS AGAINST THE DECISION OF THE TRIBUNAL TO HOLD THAT INCOME FROM PURCHASE AND SALE OF SHARES WITH HOLDING PERIOD LESS THAN 30 DAYS TO BE BUSINESS INCOME, HOW EVER, THERE IS NO CROSS- APPEAL BY THE ASSESSEE ON THIS ASPECT. THEREFORE, WE HEREBY AFFIRM THE ORDER OF THE CIT(A) ON THIS ASPECT ALSO WHEREBY THE INCOM E FROM PURCHASE AND SALE OF SHARES WITH HOLDING PERIOD LESS THAN 9 MONTHS BE TREATED AS BUSINESS INCOME. 8. IN THE RESULT, FOLLOWING THE PRECEDENT BY WAY OF THE ORDER OF THE TRIBUNAL DATED 29.11.2013 (SUPRA) IN ASSESSEES OWN CASE, TH E CAPTIONED APPEAL OF THE REVENUE IS HEREBY DISMISSED. ORDER PRONOUNCED ON 20 TH FEBRUARY, 2015. SD/- SD /- (SUSHMA CHOWLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 20 TH FEBRUARY, 2015. SUJEET ITA NO.2099/PN/2012 COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, NASHIK; 4) THE CIT-II, NASHIK; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE