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2016 (10) TMI 422 - ITAT DELHIIncome accrued to the assessee from sale of shares - Short term capital gains or business income - Held that:- The AO and the ld. DR have not controverted this fact that the assessee made investments in shares/securities in ING Vyasa Bank to act as portfolio investment banker and no investment has been made directly by the assessee in the nature of business adventure in the nature of trade. We may also point out that as per the ratio of the decision of the Hon'ble High Court of Delhi in the case of Radials International [2014 (5) TMI 18 - DELHI HIGH COURT] the intention of the assessee must be inferred holistically from the conduct of the assessee, circumstances of the transactions and not just from seeming motive at the time of depositing money. Their Lordships held that intention of the assessee, other crucial factors like the substantial nature of the transactions, frequency, volume etc. must be taken into account to evaluate whether the transactions are adventure in the nature of trade. Lastly, their Lordships held that the block of transactions entered into by the portfolio manager must be tested against the principles laid down, in order to evaluate whether they are investments or adventures in the nature of trade and if the transactions entered into by the assessee are through portfolio banker are not adventure in the nature of trade, then the same should be treated as investment and income accrued therefrom has to be taxed either as long term or short term capital gains. Accordingly, the sole ground raised by the assessee is allowed and the AO is directed to treat the income accrued to the assessee from sale of shares through portfolio manager as income from long term /short term capital gain.
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