TaxTMI 
TaxTMI 
2011 (2) TMI 84
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....accept the claim of Short Term Capital Gain and Long Term Capital Gain on profit arriving from purchase & sale of shares instead of business income treated by the A.O. without appreciating the fact that the assessee is dealing in large volume of shares, most of the shares are bought and sold within short period, while some are not sold due to market conditions and their holding with assessee remains beyond few days, it will not change the nature of transactions and the assessee is very well engaged in the business of share trading, which denote that the motive of the assessee is to carry on business in shares to book profit rather than investment in shares." 2. The assessee is a marine consultant. He also has investment in shares.....
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....essment the magnitude of delivery based transactions of ale and purchase done by the assessee is as under :- No of shares bought and sold 2,00,066 Purchase amount 1,04,33,159 Sales amount 1,17,81.189 No. of transactions 222 Gain 13,48,030 Long term capital gains No of shares bought and sold 9469 Purchase amount 503397 Sales amount 3487423 No. of transactions 26 Gain 2984062 4.1.3 In addition to this, as per the statement of trading in shares filed along with the return of income it is observed that assessee has speculated....
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....In the case of Kitply Industries the shares were held from more than 10 years. In the case of Pidilite Industries and Radico Khaitan the shares were held for more than 13 years and 11 years. The shares of IFCI were also held for 11 years and 6 months. A perusal of the period holding, demonstrates that the assessee has acted as investor and has held these 12 scrips as an investor and not as a trader. Thus the income arising out of sale of these 12 scrips, in our humble opinion, is to be assessed only under the head "Long Term Capital Gains". 7. Coming to the sale of shares which resulted in Short Term Capital Gains, we do not find any intraday trading. In the case of SPIC shares the period of holding was more than 330 days. Similar....
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....r as contended by the representative, the appellant has no borrowed funds either as on 31.03.2005 or as on 31.03.2006 as per the balace sheet whereas the A.O. held in the Assessment order as [para 4.1.5] that the appellant borrowed loans for the purpose of doing share business which is totally incorrect. Further the appellant has brought to the notice of the A.O. by letter dated 15.10.2008 that the shares on which long term capital gain was offered were held for more than 3-5 years and the same are shown as investment in the balance sheet, but the A.O. held that only some shares were held for more than a month and other shares were held for a very short period. Even in respect of short term capital gain, the appellant had already submitted ....
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....t hange the opening investment as stokin- trade during this year, otherwise it would be contrary to the stand taken by the A.O. himself in the earlier year. Further it is seen that the appellant has paid STT in respect of share transactions as applicable to the investment. 5.2 Further the Hon'ble ITAT in the case of Gopal Purohit vs. JCIT (29 SOT 117) held as under in para 8.1 "In our view, the legislative change of this nature, whereby no change has been made in respect of nature and modus operandi of such share transactions, resulting into any advantage cannot be taken away by the Revenue Authorities in this manner and in these circumstances, we are of the view that, principle of consistency, though it is an exception ....
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....rictly speaking, resjudicata does not apply to income-tax proceedings. Though, each assessment year being a unit, what was decided in one year might not apply in the following year, where a fundamental aspect permeating through different assessment years has been fond as a fact one way or the other and parties have allowed that position to be sustained by no challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year." The same view has been taken by the Hon'ble Delhi Court in CIT V. Neo Poly Pack (P) Ltd. [2000] 245 ITR 492. 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....