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TMI Blog2016 (4) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... ua the transactions, that has been shifted from business portfolio and frequency thereof. Therefore, we hereby set aside the impugned order and restore the issue to the file of AO for de novo assessment. The assessee would place all relevant material before the AO in support of its claim. - Decided in favour of assessee for statistical purposes. - I.T.A. No.714/Ahd/2011 - - - Dated:- 16-2-2016 - SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER And SHRI KUL BHARAT, JUDICIAL MEMBER For The Appellant : Shri Milin Mehta, AR For The Respondent : Shri Dinesh Singh, Sr.DR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : This appeal by the Assessee is directed against the order of the Ld.Commissioner of Income Tax(Appeals)-II, Barod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee partly allowed the appeal. Aggrieved by the order of the ld.CIT(A), now the assessee is further in appeal before us. 3. Ground No.1 is against treating the gain of ₹ 8,54,452/- on sale of shares/securities as business income instead of capital gain as claimed by the assessee. The ld.counsel for the assessee reiterated the submissions as were made before the ld.CIT(A) and submitted that the ld.CIT(A) was not justified in confirming the addition. He submitted that the assessee is maintaining two portfolios; one on account of proprietary-concern and another on individual account. He submitted that assessee is a subbroker in shares and carries out his business in the name and style of M/s.Invex Consultancy. The assessee in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AY 2004-05 dated 12/11/2010 and decision of Coordinate Bench (ITAT C Bench Ahmedabad) rendered in the case of ACIT vs. Shri Bhupendra Shantilal Shah in ITA No.1496/Ahd/2011 for AY 2006-07 dated 28/08/2015. On the other hand, ld.Sr.DR has relied on the judgement of the Hon ble High Court of Allahabad in the case of Sangam Investments Ltd. vs. CIT, Allahabad reported at (2014) 51 taxmann.com 279 (Allahabad), judgement of Hon ble Apex Court in the case of Manoj Kumar Samdaria vs. CIT reported at (2014) 52 taxmann.com 247 (SC) and judgement of Hon ble High Court of Delhi in the case of Manoj Kumar Samdaria vs. CIT reported at (2014) 45 taxamann.com 394 (Delhi). 4. We have heard the rival submissions, perused the material available on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee in the year under consideration is a business income and is not long term capital gain or short term capital gain. The ld.CIT(A) confirmed the view of the AO by observing as under:- 2. 2. Before me it has been contended that the appellant is maintaining two portfolios one on account of proprietary concern and another on individual account. It has further been argued that number of transactions or frequency of the transactions are not important factors in deciding whether income on share transaction is a business income or an investment income. It has been argued that transaction done in the name of proprietary concern Invex Consultancy is done at office address while the transaction done in the appellant s own name i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of the decision in the case of Sugamchand C.Shah (supra) for the simple reason that the second portfolio maintained by the appellant carries shares only worth ₹ 500/-. In other words when the appellant in maintaining clearly identified tow portfolios, the transaction done in trading portfolio cannot be transferred to the investment portfolio of the share for held more than 30 days, when as per balance sheet the investment portfolio is clearly identifiable having shares of only ₹ 500/-. The appellant has argued that his averages holding of share is for 80 days and therefore it follows that transaction is on account of investment. This argument is self contradictory and not sustainable on the facts of the appellant s case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. Much water has flown since the aforesaid decision was passed. Now settled position of law is that 30 days holding period is not a right criteria as no such basis is prescribed under the Act. The assessee has also relied upon the decision of Coordinate Bench rendered in the case of ACIT vs. Shri Bhupendra Shantial Shah in ITA No.1496/Ahd/2011 for AY 2006-07(supra) to buttress the contention that assessee can maintain two separate portfolios. In our considered view, there is no ambiguity in position of law with regard to maintaining of two separate portfolios. The assessee is within his right to maintain two separate portfolios, even if he is having main business as share-trading. But the assessee is required to demonstrate with evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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