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2015 (6) TMI 416 - ITAT MUMBAITransaction of shares -`business income’ OR `capital gain’ - Held that:- From the break up of summary of capital gain, it is seen that the assessee’s investment in debt mutual funds is around 73% and also there is investment in venture funds. The investment in equity shares is approximately 27%. From this, it can be very well inferred that the assessee is mostly into long term investment activity. This is also coupled with other factors like, assessee has made investment solely from his own funds and not from any borrowed funds; he has managed his entire investment activity, through Fund managers / PMS. All these factors goes to show the intention of the assessee, which was to buy the shares for investment purpose and to sell the same to maximize the gain from such investments. Besides this, another very vital factor relevant in the assessee’s case is that, on similar nature of transactions, which fact has been noted by the AO in the assessment order itself that in the earlier years the department has accepted the gain from sale of shares to be assessed under the head `capital gains’ and such a view has been accepted under scrutiny proceedings passed u/s 143(3). Thus, on the facts and circumstances of the assessee’s case, we hold that the gain from transaction of shares by the assessee is to be assessed under the head `capital gains’ and not as `business income’. - Decided in favour of assessee.
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