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2013 (6) TMI 572 - AT - Income TaxProfit arriving from purchase & sale of shares - Capital gain v/s business income - Held that:- From the detail as produced it find that 73.75% of investments transacted were held for more than 6 months, despite the fact that numbers of transactions were 61 in 46 scrips, which resulted in only 13.95% shares held as investments. Based on these facts applying the decisions of Gopal Purohit [2009 (2) TMI 233 - ITAT BOMBAY-G] which now has found approval even by the Hon'ble Supreme Court [2010 (11) TMI 222 - Supreme Court of India], the Hon'ble Bombay High Court had insisted upon intention at the time of purchase and consistency in the nature of holdings. On both these grounds, the issue is squarely covered by the decision. Coming to the charts and the details in the Balance Sheet, with regard to the holding pattern of shares, held under investments and trading, it is evidently clear that the assessee was maintaining separate distinct portfolios. This fact, not having been denied by the AO, is basically the spine of the submissions of the assessee, before the revenue authorities. Hence the facts gets squarely covered by the decision of Gopal Purohit (supra). Thus Respectfully following the decisions above no reason to disturb the order of the CIT(A)stating that profit arising on sale of such shares cannot be assessed under the head business and the claim of the assessee that it is assessable under the head long term capital gains has to be accepted. Against revenue.
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