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TMI Blog2013 (6) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appelant : Shri Dharmesh Shah For the Respondent : Shri Girija Dayal ORDER PER N.K. BILLAIYA, AM: This appeal by the assessee is directed against the order of the Ld. CIT(A)-27, Mumbai dt.14.12.2011 pertaining to A.Y. 2010-11. 2. The assessee has raised four substantive grounds of appeal and one additional ground. Ground No. 1 2 relate to the treatment of Short term capital gain on sale of shares and securities under the head Income from Business or Profession . Ground No. 3 4 are alternative plea and so also the additional ground depending upon the outcome of the decision in ground Nos. 1 2. 3. During the course of the assessment proceedings, the Assessing Officer noticed that the assessee shown sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or Profession and accordingly treated the entire STCG of ₹ 83,15,790/- as income from business. 4. The assessee carried the matter before the Ld. CIT(A) and reiterated what has been stated before the AO. After considering the facts and the submissions, the Ld. CIT(A) observed that the assessee has carried out transaction in shares on 204 days out of 250 working days of Stock exchange. The Ld. CIT(A) also observed that the assessee has done repetitive transactions in the same scrips during the year and agreed with the findings of the AO that the assessee has carried out transaction in shares in a business like manner. 5. Aggrieved by this finding of Ld. CIT(A), the assessee is before us. 6. Before us, the Ld. Counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue, whether the income from sale and purchase of shares in a particular case should be treated as capital gain or as business income has been a debatable issue and there are conflicting decisions of the Tribunal on this issue. Each case is, therefore, to be based on its own factual situation. In the present case, it is not in dispute that the assessee is a Doctor and is whole time engaged in his profession. Whether a particular holding of shares is by way of investment or forms part of the stock-in-trade is a matter which is within the knowledge of the assessee who holds the shares and it should, in normal circumstances, be in a position to produce evidence from its records as to whether it has maintained any distinction between those s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fling portfolio by selling of some scrips and buying of some scrips to mitigate the scope of law of capital or income. Therefore, the reshuffling in a short period is not necessarily to be taken as an activity of trading when the intention was to reduce the risk of loss of capital. A perusal of the statement of accounts show that the assessee has no bank borrowings, the only borrowings are from family members and the income and expenditure account of the assessee does not reflect any claim of interest payment which means that the assessee has made investments not out of borrowed capital. 8.2. Considering the profession of the assessee, it cannot be said that the assessee was fully devoted to the stock market transaction. Considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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