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2022 (6) TMI 639 - AT - Income TaxDisallowance of set-off u/s 70 of share trading business loss against income from profession - distinction between shares held as stock-in-trade and shares held as investment - HELD THAT:- From the assessee's conduct, it is evident that the shares were not purchased for purpose of holding them as investment and the fact that most of the shares were sold by the assessee during the first itself indicates that the assessee intended to purchase and sell shares as business activity and not to hold shares on long-term basis for earning capital gains or earning dividend income - CBDT has also issued guidelines for assessing officers on tests for distinction between shares held as stock-in-trade and shares held as investment vide office memorandum, dated 13.12.2005 [F. No. 149/287/2005-TPL] and one of the criteria mentioned therein is whether, the purchase is made solely with the intention of resale at a profit or for long-term appreciation and/or for earning dividends and interest and also the typical holding period for securities bought and sold. We see that in instant facts, almost all the shares which the assessee purchased during the year were sold by him. As noted above, out of 34 stocks purchased during the year, the assessee sold 32 of those scripts, which is a clear indicator that the intention at the time of purchase of scripts was to sell them at a profit. On the issue that the assessee has employed his own capital or reflected shares as investment, we note that in the case of CIT v Naishad I. Parikh 2013 (10) TMI 292 - GUJARAT HIGH COURT the Gujarat High Court held that where assessee claimed share trading and future options losses and further, assessee had substantiated entire transactions by furnishing valid and statutorily accepted documents, merely debiting directly these items in capital account instead of in profit and loss account and, not routing share trading account through audited account under section 44AB, could not be a ground to disregard legally acceptable claim of assessee. Therefore, the assessee has been able to substantiate that the shares were purchased for the purpose of trading and earning profit and not for purpose of holding them as investment to earn capital gains/dividend income. This is this is evident from the fact that during the first year itself, almost all of the scripts purchased by the assessee were sold by him - we hold that the CIT(A) has erred in facts and law in holding that the loss from sale of shares was short-term capital losses and hence not eligible for set of against income from profession of the assessee. - Assessee appeal allowed.
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