2015 (2) TMI 1204

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....e short term capital gain declared by the assessee at Rs. 33,17,908/- as such and not as business income after holding that 50% of the transactions relate to a period exceeding more than 180 days and frequently of transaction is also not much. 2. On the facts and in the circumstances of the case and in law, the Ld CIT (A) has failed to appreciate the fact that only 12% of the sale transactions relate to shares where period of holding is more than 180 days as shown in the table of period of holding and the magnitude of transaction is also huge which clearly establish that the motive for transaction was to earn profit by pursuing an adventure in the nature of trade. 3. On the facts and in the circumstances of the case and in law, the Ld C....

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....l before the CIT (A). 3. During the proceedings before the first appellate authority, assessee reiterated the submissions made before the Assessing Officer and relied on various decisions of the ITAT as well as the judgments of the higher judiciary. After considering the submissions of the assessee, CIT (A) allowed the appeal and directed the Assessing Officer to treat the said sum of Rs. 33,17,908/- as short term capital gain only. Para 3 and its sub-paras of the CIT (A)'s order are relevant in this regard. Aggrieved with the said decision of the CIT (A), Revenue is in appeal before the Tribunal by raising the above mentioned grounds. 4. During the proceedings before us, Ld DR relied on the order of the Assessing Officer. 5. On the othe....

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.... gains more than 50% transactions relate to a period exceeding 180 days which fact would negate the Assessing Officer's findings of the appellant being a trader. The Ld. AR has relied upon the decision of the ITAT Mumbai "B" Bench in the case of Naishadh V. Vachharajani in ITA No. 6429/Mum/2009. The Ld. AR has also emphasized that mere volume of transaction transacted by an assessee would not alter the nature of transaction. It is an established principle that income has to be computed with regard to the transaction. The transaction as a whole has to be taken in consideration and the magnitude of the transaction does not alter the nature of transaction. Reliance has been placed in the case of Janak S.Rangwala v. ACIT 11 SOT 627. The app....