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TMI Blog2013 (10) TMI 1523X X X X Extracts X X X X X X X X Extracts X X X X ..... or the past several years. The income under the head 'capital gains' for AY 2007-08 stood assessed as returned, i.e., as such, at ₹ 30.71 lacs vide order u/s.143(3) dated 11.12.2009 (PB pgs. 19-21). The proposal for a revision u/s. 263 of the Act was subsequently moved by the office of the Commissioner of Income-tax-14, Mumbai ('CIT' for short) on16.12.2010. However, on a detailed reply dated 18.02.011 filed by the assessee, the competent authority vide his communication dated 21/2/2011dropped the said proceedings on the basis that the Assessing Officer (A.O.) had considered the matter and taken one of the views possible after active consideration of the facts, so that no revision in terms of the trite law could arise, relying on the decision in the case of CIT v. Greenworld Corpn. [2009] 314 ITR 81/181 Taxman 111 (SC) (PB pgs.22-25, 26). Even for a subsequent year, i.e., A.Y. 2010-11, the assessment stands framed u/s.143(3) on 01.03.2012, assessing the returned income as such, i.e., at a loss, both by way of STCG as well as long term capital gains (LTCG) (PB pgs.39-40). Even for the intervening years, i.e., A.Ys. 2008-09 and 2009-10, the income stood assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onversion of investment brought forward as on 01.04.2007 (at ₹ 37.58 lacs / PB pg.45), besides also allowed loss on account of the fall in the market price of the shares held as at the year-end (₹ 22.66 lacs) inasmuch and to the extent the said fall in value is below cost, and would thus warrant being valued at ₹ 88.69 lacs as against their carrying value of ₹ 111.31 lacs as investments (PB pgs.44). 3. We have heard the parties, and perused the material on record. 3.1 There is no dispute on the law in the matter, so that the issue involved essentially revolves around the application of the law in the matter, which is clear, i.e., the determination of whether the activity under reference amounts to a trade or investment activity, which is essentially a question of fact. As such, the determination of the issue at hand would depend on the findings of fact, and the decisions by the tribunal relied upon by the assessee before us, viz. Asstt. CIT v. Nagindas P. Seth (HUF) [IT Appeal No. 961 1836 (Mum.) of 2010, dated 5-4-2011] and Shantilal M. Jain v. Asstt. CIT [2011] 132 ITD 466 (Mum.) would be, even as observed during hearing, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Further, as explained in the case of Raja BahadurVisheshwara Singh v. CIT [1961] 41 ITR 685 (SC), no single fact has any decisive significance and the question whether it is a trading or an investment activity must be answered depending on collective effect of all relevant materials brought on record. 3.2 Coming to the facts of the case, we firstly observe that the assessee has disclosed, and the Revenue has accepted, the income on shares held for more than one year as LTCG. The assessee has, therefore, to that extent been accepted to be an investor by the Revenue (PB pg.43). Firstly, therefore, there is no question of any deemed conversion of capital assets held as on 31.03.2007 as stock-in-trade for the current year. The same would, if so, operate to both the categories of capital assets, i.e., LTCA as well as the STCA; for all we know, a short term capital asset (STCA) as on 01.04.2007 may stand to be categorized as long term as on 31.03.2008, i.e., where remaining unsold by that date, which cannot be pre-determined on 01.04.2007. The transactions qua these assets also reflect an investment behavior inasmuch as, firstly, the same extends to about 15 scrips (PB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business even where the same extended to a much lower number of trades as obtaining in the instant case. 3.4 We capsule the specific findings by the ld. CIT(A), none of which are controverted, being in fact based on the data provided by the assessee itself (refer para 4, pages 4 through 7, of the impugned order): (a) The assessee has traded in a large number of companies (supra) and for 129 days during the year during which the stock exchange is open - for practically 250 days, over a large number of scrips; (b) there is admittedly speculative trade in 9 scrips, of which 8 are common, i.e., for which the assessee has claimed STCG; (c) 60 of the total (110) trades have a holding period of less than 60 days, with 36 (about 1/3rd) of them being between 2-15 days; (d) repetitive transaction of purchase and sale were also observed in some scrips, viz. Genus Overseas; Indergiri Finance; Lokesh Machine; Mcpally Bharat; Wire Wire Industries, etc.; (e) all transactions acquired through the IPO route (8), stood sold during the year; (f) all the shares, save one (1700 shares in India Cem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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