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TMI Blog2015 (11) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of law for our consideration as under: "1) Whether in law and on the facts of the instant case, was the Tribunal right in coming to the conclusion that the respondent individual is an investor merely on the ground that certain mutual funds were held for more than 12 months, and the books were written in an appropriate manner, ignoring the fact recorded by the AO that the impugned gains were declared so in order to avail of a concessional rate of taxation? 2) Whether in law and on the facts of the case, was the Tribunal right in holding that the mere entry in books of accounts that shares are held as investment, make the respondent individual an investor, whereas the period of holding of these scrips, the frequency, the volume and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on value thereof. 5. So far as short term capital gains are concerned, the CIT(A) placed reliance upon the Circular No.1827/1989 dated 31 August 1989 as modified by Circular No.4/2007 dated 15 June 2007 issued by the Central Board of Direct Taxes (the 'CBDT'). On examination of each of the parameter set out in the above instructions/circular of the CBDT reached the finding of fact taking into account the time devoted by the appellant to its investment activity bearing in mind that he is an active partner of business alongwith his brother which has a turnover of Rs. 19.27 crores. Further the investment activity is an independent activity and has no relation to the business carried out in partnership of embroidery. On examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as investment in shares are concerned, the assessee took delivery of the shares and not entered into intraday trading. 7. The Tribunal particularly records the fact that it is not the case of revenue that shares which were reflected in the respondent-assessee's books of account as stock in trade were reclassified as investment with intent to avoid and/or reduce taxability. This was in response to the submission by the Departmental Representative that the impugned gains have been offered as capital gains only to avail of concessional rate of tax applicable to it. It is very pertinent to note that the impugned order of the Tribunal has referred to the fact that for the earlier assessment years, the Assessing Officer had on the identic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and accordingly not entertained. Regarding Question No.2: 9. The grievance of the Mr.Pinto is that the impugned order completely overlooked the fact that purchase turn over of Rs. 8.07 crores and sales turn over of Rs. 9.13 crores of the respondent-assessee is indeed very high. The transactions entered into by the respondent-assessee are 205 during the year. On the above basis it is submitted that looking at the value and frequency of the transactions would itself be an indication of the fact that the respondent-assessee was engaged in the business of trading in shares. We find that the Assessing Officer in the Assessment Order gives a table of the transaction entered during the year. From the table, it is evident that a single purch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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