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2011 (7) TMI 818 - HC - Income TaxCapital gain vs. business income - If the appellants had held the shares as stock in trade, and not as investment then such shares would stand excluded from the definition of short-term capital asset, and the profit earned on the sale of such shares would not be exigible to tax as short-term capital gain but as profits and gains from business - If the transaction is in the ordinary line of the assessee's business there would hardly be any difficulty in concluding that it was a trading transaction but where it is not the facts must be properly assessed to discover whether it was in the nature of trade - The character of a transaction cannot be determined solely on the application of any abstract rule, principle or test but must depend upon all the facts and circumstances of the case - It is evident from the order of the Income-tax Appellate Tribunal that the voluminous share transactions were in the ordinary line of the appellants' business ; purchase of shares by them was not for the purpose of earning dividend but with the dominant intention of resale in order to earn profits - Appeal is dismissed
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