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2012 (12) TMI 720 - AT - Income TaxSale of shares - Nature of Income - Business Income v/s Capital Income - Held that:- It is a settled legal proposition that mere entry of transactions as investment in the books of accounts of the assessee is not conclusive in matters of deciding the capital nature of the shares transactions. However, it is also settled legal principle, the entries in the books as investment is just one of facets helpful for deciding the said nature. Therefore, the initial intention and consequential entries of transaction in the books of the assessee support the claim of the assessee with regard to the short term capital gains. Regarding the allegation of high frequency, high volume or magnitude, regularity etc, as already discussed, there is no definition for these expressions. It is the opinion of the AO/CIT(A) which is formed not based on any comparable cases or case laws. For somebody, one transaction for a day and many not be high for the others, it is many be a case of insignificant. Neither the CIT(A) nor the AO has brought out any comparable cases to demonstrate that the tranactional frequency or number of transactions have to be bracketed as ‘high’ and therefore, the dominant intention of the assessee in purchase of the shares is to resell the same and not for investment - set aside the impugned orders to the files of the CIT(A) on this issue, and direct him define the high frequency with the help of the comparable cases on hand. Assessee is also directed to assist the CIT(A) in this regard. If needed, he may file any fresh documents before the CIT(A) that would help the CIT(A) to come to the correct conclusions. On the issue of applicability of the apex court’s judgment in the case of Gopal purohit [2009 (2) TMI 233 - ITAT BOMBAY-G] there is no adequate data before us at least in the case of assessee. CIT(A) is directed to examine the applicability of the said case after obtaining adequate and relevant data. CIT(A) is also directed to examine each of the criteria set by various courts in various cases including the criterion of ‘dominant intention’ - the assessees’ grounds on this issue are adjudicated pro-tanto. Depreciation on UPS and LCD – 60% v/s 15% - Held that:- Following the decision CIT V/s. Orient Ceramics & Industries Ltd. [2011 (1) TMI 26 - DELHI HIGH COURT] that peripherals such as UPS, printers, scanners, modem, NT servers, etc. form integral part of the computer and hence the same are eligible for depreciation at the rate applicable to computers, viz. 60% - Assessees’ grounds on this issue are allowed.
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