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2011 (11) TMI 126 - ITAT MUMBAIShort term capital gain vs Business income- both trading & investment activity carried on- holdings of shares vary between one day to few weeks only- Held that:- There is no dispute to the legal proposition that the assessee can have two portfolios i.e one for investment and one for trading and also that mere volume of transaction does not mean that assessee is a trader. It is the intention with which purchase has been made has to be seen. However, in the instant case, the intention of the assessee appears to be whimsical. Purchases in the same scrip on the same day has been divided into speculation and investment. The only intention of the assessee in the impugned case is just to reduce the tax liability by treating a part of the profit as short term capital gain. Hence, profit on account of purchase and sale of shares by the assessee in the instant case has to be treated as income from business. Decided against the assessee. Deemed Dividend-shareholder holding more than 20% shareholding in assessee company is also shareholder of another company which has advanced loan to assessee company- Revenue deeming such loan as dividend in hands of assessee company-Held that:- Special Bench of the Tribunal in the case of Bhaumik Colour Pvt. Ltd.(2008 - TMI - 59371 - ITAT Bombay-E) has held that the deemed dividend can be assessed only in the hands of a person who is a shareholder of the lender company and not in the hands of a person other than a shareholder. Above view of the Tribunal has been approved in the case of CIT vs. Universal Medicare Pvt Ltd. (2010 - TMI - 76961 - Bombay High Court) . Merely because the Revenue has not accepted the decision of the Special Bench of the Tribunal cannot be a ground to take a contrary view. Decided against the Revenue.
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