TaxTMI 
TaxTMI 
2016 (3) TMI 728
X X X X Extracts X X X X
X X X X Extracts X X X X
....T.(A) erred in confirming the short term capital gain amounting to Rs. 7,79,403/- as business income while in fact, the same is taxable under the head "Capital Gain". The Short term capital gain amounting to Rs. 7,79,403/- treated as a business income be treated as short term capital gain." 2. The issue raised in ground no.1 is against the confirmation of short term capital gain of Rs. 7,79,403/- as against the business income by ld. CIT(A). 3. The brief facts of the case are that the assessee filed her return of income on 31/07/2008 by declaring income of Rs. 17,61,946/-. The return was processed u/s 143(1) of the Act and subsequently selected for scrutiny. Statutory notice u/s 143(1) were duly issued and served on the assessee. D....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ught during the current year itself and, therefore, could not have been disclosed as investments in the Balance Sheet of the preceeding year. Of the 98 transactions of the sales, 86 transactions relate to shares which were held for less than 30 days. Hence, a huge 88% of the transactions relate to shares which were held for less than 30 days.22 transactions out of the 98 transactions relate to shares which were held for only 1 day while 62 out of 98 transactions of sale relate to shares which were sold within 10 days of their purchase. This translates into 63.25% of the sales transactions where the shares were sold within 10 of their purchase. This shows that the intention of the assessee was not to hold the shares for appreciation or for t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent. The ld. AR brought to our notice that holding of the assessee in mutual funds and debentures were duly shown as "investment in mutual funds" and "investment in shares/debentures" which is placed at pg no. 3 of the paper book. The ld. Counsel also drew our attention to pg.no.5 & 6 showing details of investments, pg.no.7 long term capital gain/ loss and on pg. no. 8 &9 short term capital gain/loss. It was also submitted before us that the assessee had not borrowed funds and all these investments were made out of his assessee's owned funds and the assessesee had been showing the income from sale of shares as short term capital gain for the last more than 15 years consistently and it was only during the current year that the AO treated the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2011-12 placed at pg. no. 152-161 that income from short term capital gain from shares was accepted as such by the department itself. Further, we also note that assessee has used her own funds for the purpose of investments in mutual funds and investments in shares/debentures as shown in the balance sheet which is placed on pg.no.03 of the paper book. The conduct of the assessee is clear from the details of shares held by the assessee as on 31.03.2008 that the assessee had held the investments in shares for fairly long period of time ranging from 17 days to 2971 days which is placed at pg. no. 5&6 of the paper book. Similarly the period of holding in the case of long term capital gain from the shares ranged between 740-239 days. We are in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es are made for retention and appreciation in its value; how the value of items has been taken in the balance sheet. Thus, no single factor can be said to be decisive factor and no single principle can be laid down to determine the nature of the transaction i.e. trading activity or investment,. Each case has to be decided based on the particular facts of the said case. Therefore, there cannot be any precedent in the matter of adjudication of the issue of nature of transaction with regard to purchase and sale of shares and securities. The issue can be determined only by taking into account al the relevant facts and principles as laid down by the Hon'ble Supreme Court and other High Courts. Thus, principles are taken as guidelines to be appli....