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2013 (9) TMI 227 - ITAT KOLKATAShort term capital loss or speculation loss - whether CIT(A) erred in treating the transactions made by the assessee as short term capital loss and not speculation loss - Intention of assessee - Held that:- It is a well settled position that the assessee may acquire shares as stock in trade of its business or may acquire shares as investment or the very same assessee may acquire certain shares as stock in trade and other shares as an investor also. In our considered opinion, whether the shares in question was stock in trade of the assessee or capital investment depends upon the intention with which the shares were acquired by the assessee. If the intention of the assessee at the time of acquiring of the shares was to earn profit by selling the same again then the same constitutes stock in trade in the hands of the assessee giving rise to business income or business loss or when the shares were acquired with the intention to enjoy the fruits of such acquisition then the same constitutes capital asset in the hands of the assessee giving rise to capital gain or capital loss. The real intention of the assessee is to be gathered by taking complete fact and circumstances into consideration. There may be several factors like the manner of presentation of the same in the books of account, volume of transactions, period of holding, frequency of transactions, employment of borrowed funds for acquiring shares, nature of shares acquired etc. which taken together show the intention of the assessee for acquiring the shares. It is also an established position that the presence or absence of a single factor is not conclusive to determine the actual nature of the acquisition and a proper evaluation of all the factors taken together only show the actual intention of the assessee - assessee could not acquire sufficient number of shares and therefore the assessee sold the shares in question. However, no material was produced before us or before any lower authorities to support the above contention - CIT(A) has also brought no material on record to show what was the actual intention of the assessee in acquiring the shares in question whether the same was acquired as stock in trade or the same was acquired as capital asset to enjoy the fruits of the same - it shall be fair and in the interest of justice to restore this issue to the file of the AO for adjudication afresh after proper verification in the light of the discussions made herein above after allowing reasonable opportunity of hearing to the assessee - Decided in favour of Revenue.
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