IN INCOME TAX APPELLATE TRIBUNAL B, BENCH MUMBAI BEFORE: SHRI R.C.SHARMA, AM & SHRI SANDEEP GOSAIN, JM ITA No.6589/Mum/2012 (Assessment Year : 200 8-2009) Meena Pankaj Tanna Vs. Dy.CIT, 17(1), Mumbai 804-C (204-C), Ratty Lodge, Ground Floor, Dr.B.A.Road Dadar T.T. Mumbai 400 014 PAN/GIR No. : AACPT4113F (Appellant) .. ( Respondent) Assessee by : Ms. Nikita Agarwal Revenue by : Shri Neil Philip Date of Hearing : 21/07/2016 Date of Pronouncement 19/10/2016 ORDER PER R.C.SHARMA (A.M): This is appeal filed by assessee against order of CIT(A) for Assessment Year 2008-2009 in matter of order passed under section 143(3) of IT Act. 2. only grievance of assessee relate to treatment of profit on sale of shares offered as capital gain which was treated by AO as business income. 3. At outset, learned AR placed on record order of Tribunal in assessees own case for assessment year 2005-2006 wherein assessee s claim for 2 ITA No. 6589-2012 Meena Pankaj Tanna, Mumbai treatment of capital gains was accepted by Tribunal in ITA No.1604/Mum/2015 vide its order dated 11/02/2015 after having following observation. 5.2 We have heard rival contentions. We find from order of CIT(A), that ld. CIT(A) after discussion of over all facts and circumstances of case has given categorical finding that it has been established with sufficient evidence, that assessee's intention was of investment and not in trading in shares. He, however, treated income from sale of shares which were held by assessee for less than 45 days as business income. In our view, once ld. CIT(A) has held that assessee was investor then under such circumstances different treatment given to transaction of shares held up to 45 days cannot be said to be justified. It is intention of assessee which matters and once such intention is established, then assessee is to be treated as investor. Hence, we set aside order of CIT(A) on this issue and direct AO to compute income of assessee under head capital gains as claimed by assessee. 4. During year under consideration also, we found that assessee s intention was of investment and not trading in shares. Accordingly, profits arising out of sale of shares are to be treated as capital gain and not as business income. As facts and circumstances during year under consideration are same, respectfully following order of Tribunal in assessee s own case, we direct AO to treat profit offered on sale of shares as capital gain rather than business income. 5. In result, appeal of assessee is allowed in terms indicated herein above. Order pronounced in open court on this 19/10/2016. Sd/- Sd/- (SANDEEP GOSAIN) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated 19/10/2016 3 ITA No. 6589-2012 Meena Pankaj Tanna, Mumbai Karuna, Sr. PS Copy of Order forwarded to : 1 Appellant 2. Respondent. 3. CIT(A), Mumbai. 4. CIT BY ORDER, 5 DR, ITAT, Mumbai 6. Guard file. (Asstt. Registrar) //True Copy// ITAT, Mumbai Meena Pankaj Tanna v. Dy.CIT, 17(1), Mumbai