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2014 (1) TMI 1175 - ITAT MUMBAIActivity of sale and purchase of shares - Business income or capital gain - Held that:- Decision The Commissioner of Income Tax Versus Gopal Purohit [2010 (1) TMI 7 - BOMBAY HIGH COURT] followed - The assessee has shown certain income from share transactions as income from business and rest as income from short term capital gain - It is open to an assessee to maintain two separate portfolio, one relating to investment in shares and another relating to business activities involving dealing in shares. With regard to similar entries the department in the earlier as well as subsequent years has accepted the claim of the assessee that the shares shown as investment give rise to an income which is assessable under the head "capital gain" - In assessment years 2007-08, 2009-10 and 2010-11 similar transactions have been accepted as giving rise to income assessable under the head capital gain and only during the year under consideration a different view has been taken - There ought to be uniformity in treatment and consistency when the facts and circumstances are identical - It can be noted that the average period of holding does not vary much as for the year under consideration it is 99 days when they are compared to A.Ys 2009-10 and 2010-11 which is 91 days and 118 days respectively - The number of transactions and number of scrips dealt by the assessee is on higher side but that alone cannot be said to be a factor to deviate from the view taken in earlier and subsequent years - amount of short term capital gain shown by the assessee cannot be assessed as business income. - Decided in favour of assessee.
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