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2005 (7) TMI 277 - AT - Income TaxBusiness Income - assessability of profit arising to assessee out of sale and purchase of shares - "business income" or income under the head "Long-term capital gain" - HELD THAT:- Looking into the volume, frequency, continuity and regularity of transactions of purchase and sale in shares by the assessee, it cannot be said that assessee entered into this activity not with a motive of profit. Therefore, only inference which can be drawn is that the income earned by assessee out of sale and purchase of these shares was an income under the head "Profits and gains of business or profession". We see no justification in the finding of the ld. CIT(A) that the profit arising to assessee on sale of shares acquired by her from primary market was assessable as income from capital gain. The purchase of shares from primary market is only one of the modes of purchase, the only difference is that if the same are purchases from the market the assessee may have paid more price for it. Merely for the reasons that assessee has to wait for two to three months for allotment process, the transaction cannot be held to be a non-business transaction. Similarly the transfer of shares purchased from secondary market in the name of the assessee has little relevance to arrive at a conclusion that profit arising out of sale of those shares is also a non-business transaction as non-transfer of those shares in the name of the assessee may have effected the legal title of assessee to enable her to sell them at appropriate time. We are of the opinion that the Assessing Officer was right in holding that the income arisen to the assessee out of sale of shares was assessable under the head 'Profits and gains of business or profession' and the ld. CIT(A) was wrong in holding that such profit in the case where assessee acquired shares from primary market and in a case where purchases were from secondary market and the assessee got the shares transferred in her name was an income assessable under the head 'Capital gain'. We, therefore, set aside the order of the ld. CIT(A) and restore that of the Assessing Officer for all the years under consideration. In the result, the departmental appeals are allowed.
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