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2010 (7) TMI 663 - AT - Income TaxShort term capital gain or business income - According to the Assessing Officer the nature of activity, the frequency and magnitude suggest that the profit declared by the assessee on account of transactions in purchase and sale of shares is business income - CBDT also wishes to emphasise that it is possible for a taxpayer to have two portfolios, i.e., an investment portfolio comprising of securities which are to be treated as capital assets and a trading portfolio comprising of stock-in-trade which are to be treated as trading assets - It is possible for an assessee to be both an investor as well as dealer in shares - the assessee is employed in Twin Earth Securities Pvt. Ltd. which is a stock broking company and member of the Bombay Stock Exchange Ltd - Purchase of shares during the year and selling them frequently in short period, in our opinion, do indicate that the assessee has purchased the shares with a motive to earn profit in a short period - Each case has to be decided on the basis of its own set of facts - The profit on account of purchase and sale of shares by the assessee in the instant case has to be treated as ‘income from business’ as held by the Assessing Officer - In the result, the appeal of the revenue is allowed and the appeal of the assessee is dismissed
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