2015 (4) TMI 1249

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....Commissioner") erred in law in treating the income from Sale of Shares as Business income and not income from Short Term Capital Gain as shown by the Appellant? 2. Whether on the facts and circumstances of the Appellant's case the Learned Commissioner erred in law in not following the decision of the Bombay High Court in case of CIT v/s Gopal Purohit 336 ITR 287?" 2. The assessee claimed short term capital gain on sale and purchase of shares as well as speculation income from trading of shares. The Assessing Officer (AO) was of the view that the assessee involved in comprehensive, integrated and systematic activity of trading in shares with apparent business motive. The AO examined all the transactions of sale and purchase of shares incl....

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....the earlier year by maintaining the rule of consistency the AO cannot disallow the claim of the assessee. The Ld. A.R. has further contended that the capital gain from the shares allotted to the assessee in public issue cannot be classified as stock in trade when the assessee is holding as investment. Merely because of the volume and magnitude of transaction the AO cannot deny the nature of transactions which are being assessed as income from capital gain in the past three years. Thus, the Ld. A.R. has contended that the action of the authorities below is not sustainable in view of the various judgments of the Hon'ble High Court as well as this Tribunal. She has relied upon the following decisions: 1. Shantilal M. Jain vs. ACIT (2011) 132....

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....find that except one transaction all other transactions are in the nature of short term capital gain claimed by the assessee. Apart from the short term capital gain the assessee has also carried out these speculative transactions and shown the speculate profit to the extent of Rs. 18,039/- from six transactions. In the category of short term capital gain the assessee has shown 73 transactions and only one transaction is shown in the long term capital gain, therefore except one transaction all other transactions are the sale and purchase of shares during the year itself. We further note that out of 73 transactions showing the short term capital gain only in the case of 10 transactions the holding period is more than one month. In the majorit....