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2015 (1) TMI 1338 - ITAT PUNETreatment of the transaction of purchase and sale of shares - capital gain OR profits and gains of business - magnitude and frequency of the transaction - Held that:- The assessee is full time involved in other activity of being Executive Director of Serum Institute of India Ltd.. There is no material to suggest that any organizational structure or infrastructure is possessed by the assessee to undertake trading in shares as a business activity. There is no material to say that assessee acted as a frequent dealer in shares over an extended period of time. No doubt, for a short spell of time in the months of February and March, assessee has undertaken transactions in the shares of HCL Technologies Ltd.. But the same by itself cannot be categorized as a business activity, as it is not a continuous activity. Moreover, we also find weight in the plea setup by the Ld. Representative before us that if the intention was to incur loss, as canvassed by the Assessing Officer, then obviously such an activity cannot be categorized as ‘business’. It is well understood that no business is carried out with an intention of making a loss, rather the intention is always to make profits. Therefore, by taking an overall view of the facts and circumstances of the present case, we are unable to uphold the stand of the lower authorities that the transaction in the shares of HCL Technologies Ltd. is a business transaction. We hereby set-aside the order of the CIT(A) on this aspect and direct the Assessing Officer to re-compute the capital gain/loss on the sale of shares of HCL Technologies Ltd. considering it to be assessable under the 20 head capital gains as per law. Thus, on this aspect assessee succeeds.
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