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TMI Blog2012 (10) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1510 of 2011 - - - Dated:- 1-10-2012 - <!--[if gte mso 9]> Normal 0 false false false EN-US X-NONE MicrosoftInternetExplorer4 <![endif]--> <!--[if gte mso 9]> ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g- term Capital Gain as against business income treated by the AO? B. Whether in the facts and circumstances of the case and in law the Ld. ITAT has erred in holding the assessee as 'Investor' and not as a 'Trader' in shares and thereby treating the resultant gain on sale of shares as 'Long Term Capital Gain? 2. The questions pertain to the issue whether the respondent assessee can be stated to be engaged in the business of trading in shares. In case of an assessee belonging to the same family, under very similar circumstances, we had upheld the Tribunal's judgment making following observations:- 'The assessee as a salaried class person had filed a return of income in which he had shown the gross total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In the return of income as seen from the assessment order, the assessee has claimed ₹ 83,712 from share trading and another sum of ₹ 53,84,239 as exempt income on sale of certain sales. This ₹ 53,84,239 was treated by the assessing officer as business income on sale of shares. We find that the CBDT in its circular No.4/2007 dated 15-06-2007 examined this issue and after referring to the judgment of the apex court, instructed all its officers that it is possible for the taxpayer to have two portfolios, i/e/ investment portfolio. When the assessee has two portfolios, the income has to be assessed both under the head capital gains as well as business income . In this case, the assessee is a salaried employee. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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