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TMI Blog2012 (11) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is devoting major part of his time in share trading activities. 3) The CIT appeal erred in confirming the conclusion arrived by A.O. 4) Based on the facts of the case the decision of the AO to treat short term capital gains as the business income need to be deleted and CIT appeal erred in not deleting the addition made by A.O. 5) Disallowance u/s. 14A is unlawful, unwarranted and needs to be deleted. 2. The facts of the case are that the assessee is an individual and is full time employment as Executive Director with M/s Schiller Healthcare India P Ltd. Besides having income from salary, the assessee also maintains portfolio in shares, from where he declares income from Long Term Capital Gains (LTCG) and/or Short Term Capital G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s enclosed." 4. The assessee gave complete details of his income and expenditure, which has been extracted by the AO in the assessment order. The AO, after considering the submissions of the assessee, observes, "Though the word 'business' has not been defined in the taxing statute, yet it postulates the existence of certain elements in the activity of the assessee which would invest it with the character of the business. According to well established interpretation of word 'business' as found in taxing statutes it is the sense of an occupation or profession which occupies the time, attention and labour of a person normally with the object of making profit. To record an activity as business there must be of course dealings either actually c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submitted that the assessee was not a trader and he invited our attention to page no. 72 of the APB, wherein the complete detail of STCG has been shown. The AR submitted that - "The main activity of the assessee was attending to his business and not purchase and sale of shares. The capital gain arose due to sale and purchase of capital asset. The purchase was made by the Assessee as part of his investment strategy. During the year there are only few transactions for buying and selling of shares and the scale of activity is not at all substantial. The transactions are not on continuous and regular basis. The assessee has made all purchases from his own fund and he has not borrowed any fund, for the purpose of holding his investment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts officers in Circular No. 4/2007, dated 15-05-2007,wherein, it has been instructed that the assessee is allowed to keep/manage two types of portfolios, distinct from each other. The A.R. further referred to Hon'ble Bombay High Court in the case of CIT v/s Gopal Purohit, reported in 337 ITR 287, wherein the Hon'ble High Court approved the concept of having different portfolios, the Hon'ble High Court also held that "there should be uniformity in treatment and consistency when facts and circumstances for different years were identical, particularly in the case of the same assessee". The Bench then enquired the A.R. about the treatment in the books and assessment statute of the preceding years, the A.R., however, insisted that the current ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee indicates only towards the possibility of being an investor and not towards being a trader and in any case, moreover, the assessee is willing to accept any type of further scrutiny as may be suggested. 9. The DR relied on the orders of the revenue authorities and insisted that the intention of the assessee is the key and from the details as provided by the assessee, the intention of the assessee indicates that the assessee is a trader and not the investor in shares. 10. We have heard the arguments of both the sides and have gone through the material placed on record. If strictly going into the conduct of the assessee, we find from record that the assessee during the year had 52 transactions in term sale & purchase and only o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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