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TMI Blog2022 (4) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... vestment in the equity shares on a regular basis then depending upon the facts and circumstances of the particular case it can be inferred that transactions carried out are in the nature of business. Thus in light of the ratio laid down in the case of Merlin Holding (P.) Ltd. [ 2015 (5) TMI 794 - CALCUTTA HIGH COURT] hold that the assessee deserves to succeed on the sole ground raised in the instant appeal firstly, because the investment made in the equity shares for purchase are not from borrowed funds and they are majorly from the assessee s own capital, secondly, that the assessee has taken the delivery of the shares and held them in her demat account and sold thereafter and thirdly, the assessee is consistently showing the income fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee as investments and accordingly reflected as Investments in the Final accounts. 3. The appellant craves leave to add further grounds of appeal or alter the grounds at the time of hearing. 3. From perusal of the above grounds we find that the sole grievance of the assessee is that the ld. CIT(A) erred in confirming the action of the ld. Assessing Officer (in short ld. AO ) treating the gains from purchase and sale of shares as business income as against short term capital gain offered by the assessee in its return of income. 4. At the outset, ld. Counsel for the assessee submitted that the assessee is not in the business of purchase and sale of shares. It has not taken major loans for making investment in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear. Undoubtedly the transactions of purchase and sale of shares have been done consistently round the year but generally the shares have not been sold on the same day, nor any futures options transactions/intraday trading have been carried out. The assessee has purchased the shares, taken the delivery and sold them after holding them for few days which are in the range of 5 days to 115 days. Now, on these facts, whether the action of the ld. AO of treating the short term capital gain as business income was justified needs to be examined. 7. We find that the Hon ble jurisdictional High Court in the case of Merlin Holding (P.) Ltd. (supra) has dealt with the very same issue and the finding given by the Hon ble Court in para 6 is relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions made by the learned Advocate for the appellant, it is not possible to say that the views entertained by the CIT Appeal or the learned Tribunal were not a possible view. Therefore, the judgment cannot be said to be perverse. 8. From perusal of the above finding of the Hon ble High Court, we observe that frequency alone cannot show that the intention was to make any investment. Further, it has been held that the legislature has not made any distinction on the basis of frequency of transaction. Further, it is also judicially settled that frequency alone cannot be taken as the basis to deny the claim by the assessee of short term capital gain. Various other facts need to be examined which mainly include the source of investme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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