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2013 (8) TMI 174 - AT - Income TaxProfit on sale of shares and securities - capital gain/loss v/s business income - Held that:- It is pertinent to mention that it is not disputed that the assessee has purchased the shares out of its own funds. As regards the LTCG claimed by the assessee on account of sale of shares of TCS and Infosys Tec, the perusal of the details of sale and purchase clearly indicates that the holding period of the shares is more than one year and the entire LTCG is on account of these two scripts only. The perusal of volume of trade and frequency also clearly suggests that the impugned activity of the assessee is in the nature of investor and not as a trader. As regards the STCG it is relevant to note that the assessee has made the investments through Port-folio Management Scheme (PMS). As decided in ITO Vs Radha Birju Patel [2010 (11) TMI 145 - ITAT MUMBAI] the transactions carried out via Portfolio Management Scheme are clearly in the nature of transactions meant for maximization of wealth rather encashing the profits on appreciation in value of shares. Where the assessee is engaged in systematic activities of holding portfolio through a PMS Manager, it cannot, by any stretch of imagination, be said that the main object of holding the portfolio is to make profit by sale of shares during the course of maintaining the portfolio investment over the period. The high number of transactions shown in the statement is misleading because these are computer-split transactions and not independent transactions - relying on the decision of CIT Versus Gopal Purohit [2010 (1) TMI 7 - BOMBAY HIGH COURT] said profits on the sale of shares necessarily qualify for the treatment as investment and consequently a STCG - appeal filed by the Revenue is dismissed.
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