TMI Blog2010 (8) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... ng-term portfolio is only 5. This cannot be considered as volume of transaction - transaction in shares cannot be said to be with the intention to deal in such shares - assessable as capital gain and not as profits and of business - Appeal is dismissed - 1135/2010 - - - Dated:- 16-8-2010 - DIPAK MISRA and MANMOHAN JJ. Judgment: Manmohan J.- The present appeal has been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rises in the present proceedings inasmuch as both the Commissioner of Income-tax (Appeals) and the Tri-bunal have given cogent reasons in arriving at the conclusion that the respondent-assessee was not a trader in stock but only a investor and further his income on sale of shares was not business income. In fact, the Tribunal in its impugned order has observed as under : "9. We have carefully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the investment is out of own fund and not borrowed that the investment is not rotated frequently, that the total number of trans-actions are very few, that all the shares purchased are not sold and rather held for quite number of days. It is to be noted the Income-tax Act itself has provided that when the shares are held for a period of one year or more will be treated as long-term capital asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er merely because of the total volume of transaction is substantial, is guided to hold the income as business income. However, he failed to recognize that the volume of transaction includes the appreciation in shares also and such appreciation has been offered for tax. If volume of transaction is the criteria, what is to be examined is how frequently the transaction is done, whether the transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were with the intention of earning appreciation from such shares. There-fore, the same are assessable as capital gain and not as profits and of business. We, therefore, uphold the orders of the learned Commissioner of Income-tax (Appeals)." 4. In our opinion, the factual findings of the final fact finding authority are neither perverse nor contrary to record. Accordingly, we find that no sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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