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2022 (4) TMI 445 - ITAT KOLKATACorrect head of income - gains from purchase and sale of shares - business income or short term capital gain - HELD THAT:- Frequency alone cannot show that the intention was to make any investment. Further, it has been held that the legislature has not made any distinction on the basis of frequency of transaction - it is also judicially settled that frequency alone cannot be taken as the basis to deny the claim by the assessee of short term capital gain. Various other facts need to be examined which mainly include the source of investment made in the equity shares. If a person takes loan, pays interest thereon and uses the borrowed funds for making investment in the equity shares on a regular basis then depending upon the facts and circumstances of the particular case it can be inferred that transactions carried out are in the nature of business. Thus in light of the ratio laid down in the case of Merlin Holding (P.) Ltd. [2015 (5) TMI 794 - CALCUTTA HIGH COURT] hold that the assessee deserves to succeed on the sole ground raised in the instant appeal firstly, because the investment made in the equity shares for purchase are not from borrowed funds and they are majorly from the assessee’s own capital, secondly, that the assessee has taken the delivery of the shares and held them in her demat account and sold thereafter and thirdly, the assessee is consistently showing the income from long term capital gain and short term capital gain from sale of shares in the past and in subsequent years and not disputed by Revenue. We, therefore, set aside the finding of the ld. CIT(A) and hold that the gain should be taxed as a short term capital gain and not as a business income - Appeal of assessee allowed.
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