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2016 (7) TMI 251 - AT - Income TaxTransfer of shares - CIT(A) directed AO to treat the gain on transfer of shares which was held by the assessee for less than 1 month as business income - business income v/s capital gain - Held that:- In view of the consistent stand of the Tribunal in the Asstt.Years 2005- 06 and 2006-07 and 2008-09, we are of the view that the assessee has to be treated as an investor. The ld.CIT(A) has considered the circumstances in an elaborate manner in order to bring the point at home that the assessee was an investor. The ld.DR has pointed out that the assessee has taken loan of ₹ 84.50 lakhs which might have been used for the purpose of investment in shares. He read over statement of facts filed along with appeal. We find that the ld.CIT(A) has considered this aspect in the finding extracted (supra). According to the finding of the ld.CIT(A), the loan taken by the assessee was not specifically used for the purpose of making investment. The loan was taken in the month of March, 2007 by way of overdraft against FDRs. It was for a very short period of time. Hence, this circumstance cannot be used against the assessee to record a finding that the assessee was a trader. Neither in the Act nor in the Income Tax Rules any classification has been called for that if shares are held less than 30 days, then, the profit on sale of such shares would be treated as business income. On the strength of the circumstantial evidences, a composite opinion has to be formed by the adjudicator exhibiting the fact whether the assessee is an investor or trader. Therefore, there cannot be any further classification. The ld.CIT(A) has erred in carving out an artificial classification on the basis of holding period of certain shares. In the result, we allow the CO filed by the assessee and direct the AO to treat profit on sale of shares as long term capital gain or short term capital gain in accordance with the holding period of the shares - Decided against revenue In view of
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