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TMI Blog2016 (10) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... a [CIT(Appeals)] has erred in upholding the assessment of the sum of Rs. 88,05,787 as income under the head of "Profits Gains of Business or Profession" as against the appellant's claim in the return of income under the head "Short Term Capital Gains". Shri Miraj D Shah Ld. Authorized Representative appeared on behalf of assessee and Shri P.K.Chakraborty, Ld. Departmental Representative appeared on behalf of Revenue. 3. Sole ground raised by assessee is that Ld. CIT(A) erred in confirming the action of Assessing Officer by treating the income of assessee under the head "profit & gains of business occupation" against the claim of assessee in its returned income under the head "short term capital gains (STCG for short)". 4. Facts in brief are that assessee in the present case assessee is a Private Limited Company and engaged in business of investment and finance. The assessee for the year under consideration has field its return of income declaring total income of Rs.69,44,430/- on 31.03.2010. Thereafter the case was selected for scrutiny under CASS and accordingly notice u/s 143(2) of the Act was issued. The assessee has declared its income from STCG at Rs. 88,05,787/- and Long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere high; only one demat account; the period of holding was less in the case of short term capital gain; interest being paid by appellant on borrowed money in common kitty for investments; the high turnover was on account of frequency of transactions; the assessees had dealt in delivery trading purely with the intention of making quick profits on a huge turnover; the period of holding of a majority of the stock was few days; in most of the transactions" the assessees did not even hold on to at least some part of the huge purchases and had engaged in the same scrips frequently; the intention of the assessees in buying shares was not to derive income by way of dividend on such shares but to earn profits on the sale of the shares; the assessees had indulged in multiple transactions of different quantities with high periodicity. These periodic transactions, selecting the time of entry and exit in each scrip, called for regular direction and management which would indicate that it was in the nature of trade; repeated transactions, coupled with the subsequent conduct of the asses sees to re-enter the same scrip or some other scrip, in order to take advantage of market fluctuations lent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessed as business income. The long term capital gain shown by the assessee is accepted as long term capital gains amounting to Rs. 8,45,589/-. The appellant will not get the benefit of closing stock of investments shown in the final accounts as on 31st March 2008 to be considered as capital gains in the Assessment Year 2009-10 merely because it has been accepted so in this appellate order. The appeal on issue of short term capital gain to be treated as short term capital gain instead of business income is dismissed. 39. The Hon'ble appellate Courts have determined the issue on the facts of each case giving the various points/issues considered for coming to a conclusion regarding the head of income under which the share profit is to be taxed. The long term capital gain amounting to Rs. 8,45,589/- is held to be long term capital gain exempted u/s 10(38) of the Income-tax Act, 1961. The amount of Rs. 88,05,787/- is held to business income instead of short term capital gain and Rs. 8,45,589/- as long term capital gain as declared by the appellant. These grounds of appeal are accordingly decided and order of the Assessing Officer is upheld partly on this issue." Being aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital Gin or Business Inc, shall take into account the followingITA a) Where the assessee itself, irrespective of the period of holding the listed shares and securities, opts to treat them as stock-in-trade, the income arising from transfer of such shares/securities would be treated as its business income, b) In respect of listed shares and securities held for a period of more than 12 months immediately preceding the date of its transfer, if the assessee desires to treat the income arising from the transfer thereof as Capital Gain, the same shall not be put to dispute by the Assessing Officer. However, this stand, once taken by the assessee in a particular Assessment Year, shall remain applicable in subsequent Assessment Years also and the taxpayers shall not be allowed to adopt a different contrary stand in this regard in subsequent years; c) In all other cases, the nature of transaction (i.e whether the same is in the nature of capital gain or business income) shall continue to be decided keeping in view the aforesaid Circulars issued by the CBDT." From the plain reading of clause (a) of the said Notification, we find that it has been instructed that if the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the decision in the facts of the present case. The finding of fact does not call for interference in an appeal under s. 260A. No substantial question of law is raised.-Gopal Purohit vs. Jt. CIT (2009) 122 TTJ (Mumbai) 87 : (2009) 20 DTR (Mumbai)(Trib) 99 affirmed. Tribunal having entered a pure finding of fact that the assessee is engaged in two different types of transactions namely, investment in shares and dealing in shares for the purposes of business and held that the delivery based transactions are to be treated as investment transactions and the profit received therefrom is to be treated as short-term or long-term capital gain depending on the period of holding of shares and that there ought to be uniformity in treatment and consistency in various years when the facts and circumstances are identical, no substantial question of law arises." In view of the above, we find that magnitude of the transactions do not alter the nature of the transactions. Therefore, magnitude of transactions carried out by the assessee in our view should not be very material in coming to the conclusion that income in question is income from business. Though the res judicata is not applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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