TMI Blog2013 (11) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... sactions are held more than 90 days then those purchase and sales should be treated as investment portfolio - Decided against assessee. - IT Appeal No. 2437 (Mum.) of 2010 - - - Dated:- 2-1-2013 - Order R. K. Gupta (Judicial Member).-This is an appeal by the assessee against the order of the leaned Commissioner of Income-tax (Appeals), Mumbai relating to the assessment year 2006-07. The assessee is objecting the confirmation of the action of the Assessing Officer treating the short-term capital gain of Rs. 2,31,232 as profit from share business. The relevant facts of the case are that the assessee is a director in M/s. JNJ Holdings P. Ltd. and derives income by way of salary from the company and income under the head "Capital gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra). The learned Commissioner of Income-tax (Appeals) after discussing the issue in detail and taking into consideration the Central Board of Direct Taxes Circular No. 1827, dated August 31, 1989 and the second clarification vide Circular No. 4 of 2007 and found that intention of the assessee at the time of purchase of assets has to be seen. The learned Commissioner of Income-tax (Appeals) has also appreciated that the Assessing Officer has taken into consideration the Central Board of Direct Taxes Circular No. 4 of 2007 ([2007] 291 ITR (St.) 384), dated June 15, 2007. In this circular, many aspects have been stated that it is to be seen that frequency of transactions and if the frequency of transactions is high, it may be strong indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here before the Tribunal. The contention raised before the Commissioner of Income-tax (Appeals) were reiterated here before the Tribunal by the learned authorised representative of the assessee. The attention of the Bench was drawn on profit and loss account as well as computation of income and detail of purchase and sale of shares. Accordingly, it was submitted that since the assessee is showing the purchase of shares in investment port folio, therefore, shortterm capital gain and long-term capital gain, as the case may be, has to be applied and not that the assessee is doing purchase and sale of shares for its trading activity. On the other hand, the learned Departmental representative strongly placed reliance on the order of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There were 40 purchases by the assessee and in no case, difference of purchase and sale was more than 30 days. It clearly establishes that the assessee is doing the business of applying shares in IPO and thereafter on allotment they were sold immediately, whereas the assessee has kept the sales for long time and long-term capital gain has been offered. In many cases it has been held that if the purchases and sales are effective within 90 days then they should be treated as trading of shares and if the transactions are held more than 90 days then those purchase and sales should be treated as investment portfolio. In the present case all the transactions are effected within 30 days, therefore, I am of the view that the Assessing Officer and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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