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TMI Blog2011 (4) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... vations made above and after allowing opportunity of hearing to the assessee. Nature of income from share transactions - HELD THAT:- In the present case the assessee has been frequently purchasing and selling shares and the sales in all cases have been made after holding the shares for less than 3 months and the overall profit earned has also been small clearly suggesting that the assessee had been selling the shares motivated by profit. In our view, on the facts of the case, the income arising from sale and purchase of shares within the three months period has to be treated as business income and the balance as capital gain. Hence, we confirm the order of CIT(A). X X X X Extracts X X X X X X X X Extracts X X X X ..... . The dispute is regarding nature of income received by the assessee from letting out the terrace for putting up mobile towers by the telecom companies. The assessee had declared the said income as income from house property whereas the authorities below have assessed the same as income from other sources. The case of the assessee is supported by the decision of the tribunal in case of Satyam Shivam Sundaram Cooperative Socity Ltd. (supra) and in case of Pinto's Park View Premises Co.op. Housing Society Ltd. (supra). In these cases, income from letting out terrace for putting up hording and telecom towers have been held assessable as income from house property. The revenue has placed reliance on the judgment of Hon'ble High Court of Kolkata in case of Mukherjee Estate Pvt. Ltd. (supra) in which rental income from putting up hoarding on the terrace and the wall space has been held assessable as income from other sources. We have perused the said judgment of Hon'ble High Court of Kolkata. In the said case, there was a clear finding of the tribunal that the rental income had arisen from the letting out of the hording which was held to be not part of the property. It was therefore held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gore (93 TTJ 310). The Learned DR placed reliance on the order of CIT(A). 3.2 We have perused the records and considered the rival contentions carefully. The dispute is regarding allowability of deduction on account of maintenance charges paid by the assessee. The maintenance charges consisted of electricity charges, lift maintenance charges, watch and ward charges, cleaning charges etc. The claim has been made following the decision of the tribunal in case of ACIT Vs Sunil Kumar Agarwal (supra) and in case of Sharmila Tagore (supra) in which maintenance charges paid by the assessee to the society for common services rendered have been held allowable as deduction while computing the house property income. We have considered the various aspects of the matter carefully. Income under the head house property is chargeable in respect of the bonafide letting out value of the property. In case the rent also includes any amount for rendering common services by the society, such amount has to be excluded from the gross rent as the same is not related to the letting out of the property. But in case the rental income is only in respect of letting out of the property and the assessee has incu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short period due to various factors such as change in government policy, management, market outlook, global conditions etc. The shares had been purchased from own funds as the assessee did not have any borrowed funds. The assessee had received substantial dividend of ₹ 87,083 compared to ₹ 26,323/- in the earlier year. The assessee referred to several judgments in which when separate accounts of investment was maintained and dominant intention was to hold the shares as investment profit on sale had been held assessable as capital gain. Similar transaction had been accepted by the AO as capital gain in the earlier year and therefore following the doctrine of consistency the claim had to be allowed. The holding period of shares varied from 76 to 339 days except in one case in which due to mistakes the shares had been sold on the same day. CIT(A) after considering the details filed by the assessee observed that there were no disputes that the assessee had make purchases from own fund and had earned substantial dividend. It was also noted by him that most of the gain had arisen from sale of shares held for more than 90 days. He therefore concluded that it was not proper to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs as capital gain has been accepted by the revenue. The only issue before us is whether the income from share transactions with holding period of less than three months can be assessed as capital gain or business income. 4.4 We have considered the various aspects of the issue carefully. Whether the particular share transactions constitute investment activity or trading activity will depend upon facts and circumstances of each case. The factors such as entry in the books of account as investment, transactions being funded from own funds and not borrowed funds etc, are some of the relevant factors in deciding the true nature of transactions but none of these factors is conclusive. The intention at the time of purchases is the most important factor but such intention has to be gathered from subsequent conduct of the assessee in dealing with these shares and not from the entry in the books of accounts. An investor purchases a share with a view to earning income in the form of dividend and for appreciation in value over a long period of time and is not motivated to sell shares on each and every rise in the value of shares which are in fact the attributes of a trader. In the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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