2010 (9) TMI 1136

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....f transactions the assessee is engaged in trading activity and not in investments. 2. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any grounds of appeal at any time before or during the hearing of this appeal." 2. The assessee in the present case is engaged in the business of nonbanking finance activity. The income of ₹ 3,38,01,510/- accruing to the assessee in respect of 344 securities was declared under the head "short term capital gain". The AO did not accept such claim of the assessee and assess that income under the head "business". Ld. CIT(A) has accepted the claim of the assessee on the basis of ITAT dated 12.3.10passed in ITA No. 1570/Del/08 in respect of A.Y. 2005-06. It is ag....

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.... adjusted against long term capital loss. The assessee has also declalred income from speculation gains/loss which are on account of sale and purchase of shares without delivery of the shares. During the year under consideration, the assessee had also claimed long term capital loss of ₹ 1,02,31,691/- on sale of shares which were hold by the assessee as investment and duly reflected in his Balance sheet as investment. Similar transaction of sale and purchase of shares are being carried out by the assessee in preceding years, details of which have been filed on record. In addition to the capital gains received from sale of shares the assessee had declared income from dividend received from the said shares being held as investment by the....

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....ence:- "Surplus from Leasing & Consultancy Business 1,70,802 Loss from trading business of shares/securities. (-) 2,64,862/- Capital Gains from sale of shares and Mutual Fund Units. For theperiod from 1.4.2004 to 30.9.2004. Long Term 1,95,016 Short term (-) 4,92,016 For the period from 1.10.04 to 31.3.05. Long term. 3,70,510 Short term:- -Taxable at Normal rate of tax u/s 48. 4,95,395 -Taxable at concessional rate of tax u/s 111A 93,25,949 98,94,854 Income from sale of old news papers. 215 98,01,009 Less: Exempt u/s 10(38). 3,70,510 Loss from trading of shares carried forward. (-) 2,64,862 1,05,648 96,95,361 7. From the above, we find that during the present year, upto 30th September, 2004, the assessee h....

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....g long term capital gains through out the year, short term capital loss during 1.4.2004 to 30.9.2004 and also short term capital gain during 1.10.2004 to 31.3.2005 which is taxable at normal rate of tax. Various Tribunal decisions cited by ld AR of the assessee also support the case of the assessee because it was held in the case of Janak S. Rangwala (supra) that merely volume of transactions transacted by the assessee could not alter the nature of the transaction. The Assessing Officer in the present case has proceeded on the basis that the quantum of purchase and sale by the assessee is high and there is no other basis pointed out by the Assessing Officer to hold that this part amount of short term capital gain of ₹ 93.25 lakhs whic....