TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 1272
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....ssee and the second grievance of the assessee is that the Ld. CIT(A) erred in confirming the findings of the AO that the transactions of Swastick International were speculation losses and therefore cannot be set of against normal income of the assessee. 2. The assessee is a HUF, engaged in the business of maintenance of real estate and Trading of copper goods for self and for others on commission basis. Return for the year was filed on 15/09/2011, declaring total income at Rs. 2,46,74,220/-. The case was selected for scrutiny assessment. During the course of scrutiny assessment proceedings, the AO noticed that the assessee has shown Short Term Capital Gain of Rs. 2,23,34,990/-. The details of Short Term Capital Gain are as under:- 3. The ....
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....ave categorical finding that the assessee has neither furnished any details of godowns being maintained by the assessee. The AO was convinced with the transactions in commodity was settled otherwise then by the actual delivery for transfer of the commodities and therefore, the loss has to be treated as speculation loss. 6. Aggrieved by this, the assessee carried the matter before the Ld. CIT(A) but without any success. 7. Before us, the counsel for the assessee vehemently stated that the AO/Ld. CIT(A) grossly erred in not understanding the facts relating to the transactions in shares and have erroneously held that Short Term Capital Gains as business income of the assessee. 8. It is the say of the counsel that intention of the assessee a....
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....em Jain vs ITO in ITA No.2572/Del/2016. 10. We have given a thoughtful consideration to the order of the authorities below. The details of Short Term Capital Gains are exhibited elsewhere from which it can be seen that the assessee has purchased shares of six companies on various dates and have sold them on various dates. Doing transaction in only six scrips show that the assessee has done one transaction in every 61 days. By any stretch of imagination, this cannot be considered to be that the assessee was engaged in the high frequency transactions. Further it is not the case of the AO that the assessee was churning the shares, buying and selling the same shares again and again. A trader may acquire a commodity in which he is dealing, for....
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....P.M. Mohammed Meerakhan (P.M.) v/s CIT, [1969] 073 ITR 735 (SC), reiterated that it was not possible to evolve any single test or formula which could be applied in determining the transaction as adventure in nature of trade or not. The distinction between the two types of transaction is not always easy to make. Whether the transaction is of one kind or the other depends on the question whether the excess is an enhancement of the value by realizing the security or a gain in an operation of profit making. The assessee might have invested capital in shares with an intention to resale these if in future their sale brings in a higher price. Such an investment though motivated by a possibility of enhancement value, did not necessarily render the....
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....e laid down to decide the character of income from sale of shares and securities (i.e. whether the same is in the nature of capital gain or business income), CBDT realizing that major part of shares/securities transactions takes place in respect of the listed ones and with a view to reduce litigation and uncertainty in the matter, in partial modification to the aforesaid Circulars, further instructs that the Assessing Officers in holding whether the surplus generated from sale of listed shares or other securities would be treated as Capital Gain or Business Income, shall take into account the following a) Where the assessee itself, irrespective of the period of holding the listed shares and securities, opts to treat them as stock-in-trade....
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....13. On perusal of the aforementioned circular of CBDT shows that even Board recognised the fact that where the assessee itself, irrespective of the period of holding the registered shares, treated them stock in trade the income arising from transfer of such shares would be treated as business income which means that where the assessee hold the shares as investment, the income arising therefrom is nothing but capital gains. There is no quarrel that the assessee has purchased the shares out of its own fund and no borrowed funds have been utilised by the assessee in purchasing the shares. The only fact for treating the Short Term Capital Gain as business income is that the period of holding is very less but then the Act itself provides that w....