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2023 (9) TMI 207 - AT - Income TaxCorrect head of income - gain from sale of shares - business income or short term capital gain - assessee has categorized the purchases of shares/securities in two categories; one is investment portfolio and the second is trading portfolio and has shown the gain/income these shares under these two sections as and when the shares were sold - HELD THAT:- It is the decision of the assessee as to which purchase to be treated as investment and which to be treated in trading section. The mere fact that the assessee has purchased shares and disposed them off within a short span of time will not justify the gain to be treated as business income while the same was shown in the investment portfolio in the books of the assessee. In our opinion, the decision of both the authorities below is not sustainable as this being a factual issue and the assessee has maintained the books clearly maintaining the dichotomy in the purchase of securities in the books of accounts. The case of the assessee finds support from the decision of HK Financers Pvt. Ltd. [2015 (5) TMI 828 - CALCUTTA HIGH COURT] and Purvanchal Leasing Ltd. [2022 (2) TMI 437 - CALCUTTA HIGH COURT] - Thus we direct Ld. AO to treat it as short term capital gain. Appeal filed by the assessee is allowed.
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