TaxTMI 
TaxTMI 
TaxTMI 
2015 (1) TMI 363
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....es and derivatives broking concern. The assessee has shown long term capital gains amounting to Rs. 30,64,964/- which have been claimed exempt from taxation by virtue of section 10(38). In addition the assessee has also shown short term gains of Rs. 29,86,836/-. 3. The issue to be resolved in this case is whether the short term gains from sale of shares should be treated as capital gains (as treated by the assessee) or a business gain. The AR of the assessee vide order sheet entry dt. 10.12.2010 was asked to file complete details of short term capital gains in a tabular form indicating date of purchase, date of sale, period of holding and profit/loss booked on each scrip. Further the assessee was given a show cause as to why capital gain f....
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....thin two to three days, which demonstrates that the assessee was in fact trading in shares regularly in an organized and systematic manner, employing the facilities provided by the broker firm, in which the assessee was employed and hence the income in question was assessable under the head 'income from business' and not under the head 'income from other sources'. He took this Bench to the order of the AO and submitted that (a) the assessee cannot deny that his motive in buying and selling shares and to earn profit; (b) that the assessee has purchased shares not with a view to invest or earn dividend but only to earn immediate profits; (c) the assessee was engaged in numerous transactions of purchasing and selling a large qu....
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.... which were utilized for investment in shares; (g) there was no frequency in purchasing and selling shares. The assessee was engaged in buying shares for 92 days and for selling the shares on 85 days and on 107 days, he was involved in both buying and selling of shares, which demonstrates that he was active for less than one third of the whole year; (h) closing value of investments in shares was taken at cost in the statement of affairs; (i) sale proceeds of shares were never reflected as turnover; (j) shares were held as investments with an intention of earning dividend income. Reliance was placed on the following judgements. * CIT vs. Rohit Anand (Del) 327 ITR 445 * ACIT vs. Naishadh V.Vachharajani ITA No. 6429/Mum/2009 page 3 of t....
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....the transactions were to be treated as giving rise to capital gains and not profits and gains of business, on appeal: Held, dismissing the appeal, that the factual findings of the final fact finding authority were neither perverse nor contrary to record. No substantial question of law arose." 6.2. Applying the propositions laid down in these case laws to the facts of the case, we hold as under. 6.3. The AO has recorded the following facts: a. The assesee carried out numerous and frequent transactions in the purchase and sale of shares with high volume of Rs. 31.72 crores. b. The holding period for most of the shares has been 1 to 3 days and some of they shares have been sold on the same day. c. The asssessee is engaged profusely and fr....
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.... the current year the assesee had shown income from long term capital gain which also shows that the assessee has held these stocks for a period of more than 1 year, f. The assessee has stated that all the transactions were delivery based, g. The assesee has filed details of holding period of all the shares and it is true that in majority of the shares the holding period has been shown to be less than 30 days that all the shares have been posted through d-mat account. 6.5. With these observations the First Appellate Authority has decided the issue in favour of the assesee. 6.6. The First Appellate Authority has not considered the fact that the assessee's investment was amounting to Rs. 55.64 lakhs, whereas the turnover in purchase a....