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2016 (8) TMI 1003 - HC - Income TaxTransaction of shares - capital gain or business income - whether the assessee lady was a dealer in shares and was not an investor in shares? - Held that:- Considering the decision of this court in the case of Smt. Divyaben C. Shah (2001 (4) TMI 920 - GUJARAT HIGH COURT ) where this court has observed the test to be considered that “(i) The assessee have purchased almost all the scripts from primary market. (ii) The purchases during the year under consideration from the secondary market were quite insignificant. (iii) The investments have been mostly made out of their own funds and not out of borrowed funds. (iv) The shares have been acquired by way of subscription to the public issue. (v) The shares have been held for fairly long period. (vi) The shares once sold have never been repurchased. (vii) In the immediately preceding years, the shares shown have been accepted as investments. (viii) The purchase of shares was with an intention of keeping them as investment. (ix) The shares were never held as stock-in-trade. (x) Shares purchased were never sub-divided into group with an intention to sell.", we are of the opinion that the assessee has made investment in shares as investor and therefore, the income arisen to the assessee out of sale of shares is assessable under the head capital gain and not profit and gains of business or profession. In that view of the matter, we set aside the order of the Tribunal. - Decided in favour of the appellant-assessee
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