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2017 (6) TMI 75 - AT - Income TaxRevision u/s 263 - Profit on sale of shares - business income OR short term capital gain - Held that:- Whether or not a person carried on business in a particular commodity must depend upon volume, frequency, continuity and regularity of transactions of purchase and sale in a class of goods and the transaction must ordinarily be entered into with a profit motive. Such motive must pervade the whole series of transactions effected by the person in the course of his activity. To infer from a course of transactions that is intended thereby to carry on business ordinarily the characteristics of volume, frequency and regularity indicating an intention to continue the activity of carrying on the transaction must exist. Looking into the volume, frequency, continuity and regularity of transactions of purchase and sale in shares by the assessee, it cannot be said that the assessee entered into this activity not with a profit motive. Therefore, only inference which can be drawn is that the income earned by the assessee out of sale and purchase of these shares was an income under the head 'Profits and gains of business or profession'. No justification in lengthy argument of the assessee's counsel that the profit arising to assessee on sale of shares acquired by it was assessable as income from 'capital gain'. CIT(A) is justified in treating the profit arising out of sale of shares acquired by the assessee as income from business. Further, the AO passed order in consequent of order of CIT u/s.263 of the Act. The assessee has not preferred any appeal against the order of CIT u/s.263 of the Act. As such, that Revision order has reached finality. Hence, now the assessee cannot challenge the assessment order giving effect to order passed u/s.263 of the Act. - Decided against assessee.
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