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TMI Blog2018 (10) TMI 1127X X X X Extracts X X X X X X X X Extracts X X X X ..... e short-term capital gain, only in the case of ten transactions, the holding period is more than one month. In the majority of the transactions the period of holding is even less than one week. That is ranging from one day to seven days. Hence the argument was rejected that merely because ten transactions disclose holding period of more than one month that is not reflective of the transactions undertaken during the year under assessment. The trend is that the majority transactions have a feature in the holding of shares from one day to seven days. The assessee sold the shares within a period of one week from the date of purchase in more than eighty per cent. of the cases. It is this trend which resulted in the concurrent finding aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, found that the assessee integrated both and this is a systematic activity or trading of shares with business motive. Thus, this is a trading activity and, therefore, he treated the short-term capital gain offered by the assessee as business income. 5. Then the Commissioner was approached by the aggrieved assessee who upheld the finding of the Assessing Officer and dismissed the appeal. 6. Thereafter, the Tribunal was approached and the argument of the assessee's representative as noted in paragraph 3 of the impugned order of the Tribunal is that this assessee has been showing the profit on sale and purchase of shares as short-term capital gain which was accepted by the Assessing Officer and, therefore, for the year under cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner's order where he notes the salient features. He has noted that the income from other sources is shown out of which dividend income is negligible. The actual dividend received from shares works out to ₹ 189. There was trading/speculative income/ loss for earlier assessment years arising from trading in shares. Even for the assessment years 2004-05, 2003-04, in the statement of income it is treated as a profit on sale of shares. Hence, the past history is extremely relevant. A real investor is not influenced by short-term fluctuations, particularly negative ones and it is only the trader who is guided by these considerations. 9. The assessee included certain loss transactions and it is, therefore, clear that thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer could have been called upon to do so. Having failed to do this results in a substantial question of law. 13. We do not find any substance in these contentions for in Jaya Chheda's case, there were indeed peculiar facts. Therefore, for the assessment year 2007-08 (one of the assessment years under consideration) the assessee claimed short-term capital gains of ₹ 3,44,93,842. The Assessing Officer called upon the assessee to furnish details in relation to this claim with supporting documents. They were furnished. In the order of the Assessing Officer, the details of the transaction in shares throughout the year are set out and he came to the conclusion that the assessee had made delivery based transactions in over f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted intervention of this court and the finding of this court is that as a last appellate body, the Tribunal should have considered these mixed questions. It was empowered by law to consider these mixed questions of law and fact. It should have also referred to all details in relation to these 44 transactions and could not have made a general and sweeping observation by relying on only 42 transactions. That is how it erred in reversing the order of the Commissioner. 17. Eventually this court did not accept the assessee's plea, but remanded the case back. Such a judgment, therefore, turns essentially upon its peculiar facts and we do not see how it can assist Mr. Gandhi in this case. 18. In Income Tax Appeal No. 1974 of 2011 decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument was rejected that merely because ten transactions disclose holding period of more than one month that is not reflective of the transactions undertaken during the year under assessment. In fact, the trend is that the majority transactions have a feature in the holding of shares from one day to seven days. The assessee sold the shares within a period of one week from the date of purchase in more than eighty per cent. of the cases. It is this trend which resulted in the concurrent finding against the assessee. The intention of the assessee in indulging in these transactions is to earn profit at the earliest possible occasion and when there is a rise in the price. The assessee is moving as per the stock market trend. At the first availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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