TaxTMI 
TaxTMI 
TaxTMI 
2015 (7) TMI 286
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....ming the treatment of short term capital gain of Rs. 1702952/- offered by the assessee as business income." 3. In the return of income for assessment year under consideration the assessee has shown the income from house property, income from business, income from short term capital gain and income from other sources. During the course of assessment proceedings the AO asked the assessee to submit the details. From the details filed by the assessee regarding earning capital gain the AO noted that in majority of transactions holding period was less than one months. Even the maximum period of holding was four months. The assessee also carried out 1409 transactions in derivative trade having trade amount of Rs. 3,25,43,062/-. The assessee has s....
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....tention of the assessee as investment in shares and therefore the income from the said activity was offered as capital gain as opposed to be nondelivery bases purchase and sale of shares as business income. It is vehemently contended that assessee has two portfolios and income from investment portfolio should be treated as capital gain. In support of his contention the assessee has relied upon the CBDT circular no. 4/2007 dated 15th June 2007 as well as decision by this Tribunal in case of Gopal Purohit v. Jt. CIT (2009) 29 SOT 117 (Mumbai) which has been upheld by the Jurisdictional High Court 336 ITR 287. The concepts of two separate portfolios have been repeatedly upheld of this tribunal in various decisions. It is further contended that....
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....ITA No.561 & 566/2012. 6. We have considered the rival submissions as well as relevant material on record. The question of nature of transactions of purchase and sale of share whether investment or trading is purely factual one. Therefore, each case involving the question of fact has to be decided on the basis of the peculiar facts of the said case and not on the basis of the finding of facts in another case. The principle of precedent is not strictly applicable on the finding of facts. There are various test and criteria relevant for determining the question of nature of activity of purchase and sale as trading or investment. All the tests have only one object of ascertain the intention of the assessee while carrying out such transactions....
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....rly as possible to earn profit. The CIT(A) after considering the relevant facts has concluded in para 4 as under: "I have carefully considered the facts brought on record by the A.O. and also submission of the appellant. I find that the appellant has been doing business of derivatives on very large scale as is evident from the turnover which is Rs. 111.39 crores during the year under consideration. The stock in hand of derivative is also at Rs. 23.29 crores. In respect of shares, I find that the appellant has carried out purchase and sales of shares through about 74 transactions. The holding period of the shares ranges from 4 days to 4 months. The volume of purchase of shares is Rs. 3,25,43,062/- and that of sales is Rs. 3,08,57,293/-. The....
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....he appellant to have been used for the purchase of shares, are not sufficient for carrying out the activity of purchase and sales of the shares to such extent. (iii) That the frequency and volume of the transaction is very huge in the case of the appellant. (iv) That the appellant has carried out an organized activity of purchase and sales of the shares with a clear cut intention to earn profit from the market fluctuation." 8. Thus, it is clear that the overall holding period of the shares ranges from 4days to 4 months. The volume of purchase and sale is almost equal which shows that the intention of the assessee is not to retain the shares but disposed off at the earliest possible time. Further the assessee is having OD facility with IC....
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....ath 750 19-Sep-05 22-Sep-05 3 288073 330963 -42890 Helios&Math 2,500 08-Nov-05 22-Mar-06 134 465981 498956 -32974 Hind Oil Exploration Co. 3,000 21-Apr-05 27-Apr-05 6 426402 426924 -522 Hind Oil Exploration Co. 3,000 22-Apr-05 27-Apr-05 5 426402 451000 -24599 Hind Oil Exploration Co. 3,000 14-Nov-05 21-Mar-06 127 439863 457389 -17526 Sesa Goa 300 21-Apr-05 27-Apr-05 6 212992 218440 -5448 Sesa Goa 300 22-Apr-05 27-Apr-05 5 212992 223044 -10052 Sesa Goa 400 09-Nov-05 18-Jan-06 70 374686 409518 -34832 Sesa Goa 400 24-Nov-05 18-Jan-06 55 374686 405007 -30321 Shringar Cinemas 2,500 31-Aug-05 21-Sep-05 21 198774 213540 -14766 Shringar Cinemas 2,500 31-Aug-05 21-Sep....