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2017 (1) TMI 504 - AT - Income TaxIncome from sale of shares - LTCG and STCG or business income - Held that:- While the volume, frequency and magnitude of transactions are relevant factors for determinative of nature of transactions, no single test by itself is determination of the issue. The cumulative effect has to be weighed to determine as to whether the impugned transactions bear the trappings of adventure in the nature of trade or commerce etc. or otherwise. On the totality of the facts, we find no reason to draw adverse inference against the claim of the assessee as in the nature of “capital gains”. Therefore, the appeal of the Revenue is liable to be dismissed. As regards the grievance of the assessee, we find considerable merit therein. Mere fact that the assessee has also quickly sold shares in some instances within the short interval would not ipso facto lead to a conclusion that the assessee was a trader in the shares. The action of the CIT(A) in bifurcating the gains based on the period of holding of less than 30 days and more than 30 days is not supportable by the scheme of the Act. The STCGs as defined under section 2(42A) does not contemplate such bifurcation. Thus, the aforesaid action of the CIT(A) is a mere ipse dixit of the CIT(A) and is not sustainable in law. Hence, the plea on behalf of the assessee deserves acceptance. As a result, grievance of the assessee raised in ground No.1 is decided in favour of assessee.
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