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TMI Blog2010 (3) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not correct despite the fact that the transactions were repetitive , numerous and purchase and sale of shares had been resorted to within a span of time with an intention to earn profit. Reliance is placed on the decision of the Hon ble ITAT, Ahmedabad Bench in the case of DCIT vs. Smt. Deepaben Amitabh Shah (2006, 100 TTJ)(Ahd) 1065). 3. During the assessment proceedings, the AO noticed that frequent transactions have been made on account of purchase and sale of shares. The AO made an analysis to find out the periodicity, multiplicity and repetitiveness of the transactions of the assessee. On the basis of these findings, the main motive of the assessee regarding earning profit or making investment was analysed. In this regard, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be a trader and carry on the business of share trading activity. (ii) Out of the total funds at the disposal of the assessee 95.45% of the funds are from own funds. (iii) The appellant has showing the shares purchased as investment in the balance sheet for the past several years and accordingly, this should only be considered as an investment and not as stock in trade. (iv) The ratio of purchase to sale in case of profitable transaction is 80% whereas in case of loss transactions it is 82%. These facts prove that the appellant is not a trader who will run away with small profit or would cut losses (v) The appellant has earned dividend of ₹ 8,36,125/- on a closing investment of ₹ 2.77 Cr. This also proves that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the main intention of such share transaction was not to run it as a business since the appellant himself is a well established Doctor and does not have enough time to devote towards day to day share transactions. Similarly, with regard to the other guidelines also specific facts have been put forth by the AR of the appellant to substantiate his claim. After careful consideration of the facts and circumstances of the case I am inclined to agree with the contentions of the appellant and accordingly, the AO is directed to treat the share transactions as capital gains and not as income from business and profession. As a result this ground of the appellant is allowed. The above findings are findings of fact which neither could be controv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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