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2014 (3) TMI 688 - AT - Income TaxProfit from trading of shares – LTCG OR STCG – Held that:- There are various factors which has to be taken into consideration for determining the nature of transaction of purchase and sale of shares - no single criteria can be a decisive factor to determine the nature of transaction but a number of parameters and criteria has to be taken into account - The assessee has used his own funds and funds of his family members – thus, no interest was paid on the funds used by the assessee for the purchase of shares and securities - keeping in view the total number of transactions and the number of transactions in which the holding period is less than 10 days, it will not change the character of transaction if the assessee has treated the shares as investment in the books of accounts and has not claimed the benefit of STT paid on the purchase and sale of shares of the transactions. When there is no instance of repetitive transaction in the same scrips then there is no justification in treating the investment as trading activity - when no change has been pointed out or brought on record in the facts and circumstances for the year under consideration in comparison to the facts and circumstances of the earlier years as well as in the subsequent year - the AO is not permitted to take a different view on a particular issue in the absence of any change in the facts and circumstances - when the claim of the assessee was accepted in the earlier years as well as in the subsequent year then to maintain the principle of consistency the claim of the assessee cannot be denied until and unless there is a material change in the facts and circumstances in the year under consideration - the surplus arising from purchase and sale of shares in the case of the assessee cannot be treated as business income - the claim of the assessee is allowed - the order of CIT(A) to the extent of treating the capital gain as business income is set aside – Decided in favour of Assessee.
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