2013 (12) TMI 650

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....apital Gains instead of income from Business. While doing so, the Ld. CIT(A) has erred in not appreciating the factors like volume, period of holding, expertise, and intention of the assessee as criteria to determine the nature of transactions as adventure in the nature of trade and not as investment." 3. The learned counsel for the assessee submitted that the assessee is an investor and majority of his profits are arising from shares which have been held for more than 90 days apart from the fact that the shares were not purchased out of borrowed funds. It was also contended that on identical facts and circumstances the ITAT Mumbai Benches, in the following cases, held that the income earned from sale of shares is liable to tax under ....

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.... were purchased on 12/09/2007 for Rs.1m80,855/- and after holding the same for 16 days and 20 days, the same were sold for Rs.2,79,666/- thereby giving a profit of 45% and 68.53% respectively to the assessee. The shares of Cairns Inds. Were held for periods ranging from 183 days to 235 days and the average profit earned was 14%. 5600 shares of Essar Steel were purchased on 01/04/2007 for Rs.56,000/- and sold on 28/01/2008 for Rs.70,000/- after holding for 301 days, thereby giving a profit of 25% to the assessee. The shares of Hindustan Motors Ltd. were held for periods ranging from 319 days to 335 days and gave a return of 38% to the assessee when they were sold. The shares of India Siemens Ltd. were sold at an average return of 49.66% afte....

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.... or trader. Totality of facts and parameters, as laid down by the Hon'ble Courts as well as CBDT have to be taken into consideration in deciding the question. The fact that the assessee has not taken loan to buy shares is an important fact I his favour. 5.6 ..... The assessee is also not purchasing, selling and repurchasing the same scrips. This shows his intention of being an investor. Normally, a trader purchases, sells and repurchases the same scrips very frequently where his intention is to do a quick turnover and benefit from every increase in the price of the shares. All the aforesaid facts only go on to show that the assessee is not acting as a trader but as an investor. 5.8 I find that the Ld. CIT(A) in his order in the case o....