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TMI Blog2016 (9) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... ated the activity of purchase and sale of shares as business activity and assessed the profits arising there from as business income as against declared by the assessee as Short Term Capital Gain. We find that the allegation of Revenue that the assessee is indulging into high frequency transactions but this itself could not mean that the trading activity has been carried out by the assessee because the assessee has kept the entire investment in shares in investment portfolio and his intention is clear that he has to earn capital appreciation on the same. The assessee acted accordingly. The assessee has also kept these shares in DEMAT after taking delivery of the same. Even otherwise in earlier years and future years the assesses transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order of Ld. CIT(A)-27, Mumbai in Appeal No. CIT(A)-27/16(1)(1)/259/2010-11, order dt. 04/03/2013. Assessment was framed by ITO, Ward 16(1)(1), Mumbai under section 143(3) of the Act, 1961 ( hereinafter the Act ) for the AY 2008-09, vide his order dt. 01/12/2010. 2. The first issue in this appeal of assessee is against the order of Ld. CIT(A) confirming the action of the AO in treating the profit arising out of sale purchase of shares as business income as against declared by assessee as short term capital gain. 3. Briefly stated facts are that the assessee claimed the income arising out of sale and purchase of shares as Short Term Capital Gain or Long Term Capital Gain as the case may be. But the Assessing Officer treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e action of the AO treating the profit arising out of transactions of sale purchase of shares as business income. Aggrieved, assessee is in appeal before the Tribunal. 5. We have heard the rival contention and gone through the facts and circumstances of the case. The assessee before us filed a Paper Book containing various details of transaction of sale and purchase of shares. The assessee is a partner in partnership firm from where he is deriving income from business. The Assessing Officer during the course of assessment proceeding noted the nature of business of the assessee is share trading but this was contested by the assessee before us that actually he is investor and not a trader in shares. The Ld. Counsel for the assessee befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as transfer charges related to shares held by the assessee during different period were not debited to the trading account of the assessee but debited from the profit of shares as an investor. In view of these facts Ld. Counsel for the assessee stated that the assessee has invested in shares out of own funds and also invested in Bank FDR s. The assessee purchased shares for the purpose of appreciation in value and book profits accordingly. Assessee also made purchases of these shares through 163 transactions and sold the same through 126 transactions during the year. In view of these facts, Ld. Counsel for the assessee stated that the issue is covered by the decision of Hon'ble Bombay High Court in the case of CIT Vs. Gopal Puro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares was treated by Revenue as investment and profit or loss arising out of the same was assessed as capital gain i.e; either Long Term Capital Gain or Short Term Capital Gain as the case may be. We find that this case is covered by the decision of Bombay High Court in the case of Gopal Purohit (supra) wherein it is held as under: 2. The Tribunal has entered a pure finding of fact that the assessee was engaged in two different types of transactions. The first set of transaction involved investment in shares. The second set of transactions involved dealing in shares for the purposes of business (described in paragraph 8.3 of the judgment of the Tribunal as transactions purely of jobbing without delivery). The Tribunal has correctly appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... securities. The assessee claimed deduction of interest payment of ₹ 2,94,707/- on loans and Bank Over Draft. The AO required the assessee to explain the same from the details. The Assessing Officer noted that the assessee has taken loan on which it is paying interest and claimed deduction of ₹ 2,94,707/-. According to AO, the assessee has given interest free loan to his son Shaishav Dharia after taking interest bearing loan from his wife Deepika Dharia. Accordingly he disallowed the interest expenditure of ₹ 2,93,652/- related to his wife and also interest paid to Shri. Farooq Hawa amounting to ₹ 1005/-. Aggrieved, assessee preferred the appeal before the Ld. CIT(A), who also confirmed the action of the AO in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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