TMI Blog2012 (8) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... th the motive and intention on earning profits - where the assessee has shown income from delivery based transaction as capital gains and non delivery based transaction as business income that intention of the assessee was to make investment in shares and that the assessee can have two portfolios with the one for investment and other for share trading - Investment in shares were made for earning dividend income which was also offered by assessee in his return of income - in favour of assessee. - I.T.A.No.67/Ind/2012 - - - Dated:- 12-6-2012 - SHRI JOGINDER SINGH, AND SHRI R.C.SHARMA, JJ. Appellant by : Shri Arun Dewan, Sr. DR Respondent by : Shri S.S. Deshpande O R D E R PER R. C. SHARMA, A.M. This is an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares as an investment and not as Stock-in-trade. C. The shares have been held for the purpose of earning the dividend and for the purpose of investment in Shares. Dividend Received during the year Rs. 49,496/-. The assessee declared the total dividend income of Rs. 49,496/- which shows that the assessee's intention was to get returns on its investments. D. The assessee has never borrowed any money for making the investment in shares and it was only own money which was invested in the shares. E. In most of the every transactions made during the year have resulted in the delivery of the shares and there is no question or doubt to suspect any of the' transaction as a speculative transaction. Further the assessee have paid and taken del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o holding shares for more than 3 months. K. Reliance have also been placed on the decisions of the Hon'ble Supreme Court in the following cases : . (i) G. Venkataswamy Naidu Co., V/s. CIT, 35 ITR 594 (S.C.) (ii) Raja Bahadur Kamakshya Narain Singh V/s. CIT. , 77 ITR 225 (iii) Bengal and Assam Investors Ltd. vis. CIT, 59 ITR 547. L. Further reliance also placed on the recent decision of IT AT Mumbai Bench "I" in the case of Management Structure Systems Pvt. Ltd., Vls.CIT Mumbai (ITA No. 6966/MUM12007. On the basis of above contention it is submitted the gains on sale of shares be assessed under the head "Capital Gains" as returned by the assessee . However, the Assessing Officer did not agree with assessee s contention and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eness of such transactions nor has he treated such transaction as non delivery based speculative in nature. He has observed that such shares in Gremac Infra was held in the Pool AI c of the broker and directly profit on such transactions was credited in appellant's bank account on 16.11.07 and thus such profit was earned without any investment and thus the intention of the appellant making such purchase was merely to earn profit. He has accordingly held from share dealing transactions as Business income, considering facts and circumstances of the cases. 4.3 In these facts, there is sufficient merit and force in appellant's submission. Existence of profit motive cannot be decisive test for treating any share dealing transaction as business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business activity as investments are also made with the motive and intention on earning profits. Hon'ble Jurisdictional High Court in the case of Om Prakash Suri reported in 19 ITJ 326, observed that where the assessee has shown income from delivery based transaction as capital gains and non delivery based transaction as business income, the Tribunal was justified in holding that intention of the assessee was to make investment in shares and that the assessee can have two portfolios with the one for investment and other for share trading. Accordingly, it was held that Tribunal was justified in holding that a profit on delivery based shares held for less than 12 months was liable to tax as short term capital gains. In the instant case, we a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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