TMI Blog2013 (12) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... eal by the Revenue is directed against the order dated 02.08.2011 passed by the CIT(A)-24, Mumbai and it pertains to A.Y. 2008-09. 2. Following grounds were urged before us: - "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in directing the AO to assess income from share transactions under the head Capital Gains instead of income from Business. While doing so, the Ld. CIT(A) has erred in not appreciating the factors like volume, period of holding, expertise, and intention of the assessee as criteria to determine the nature of transactions as adventure in the nature of trade and not as investment." 3. The learned counsel for the assessee submitted that the assessee is an investor and majority o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "5.4 ..... To purchase shares and then wait for appreciation in their value is the classic example of an investor. On analysis of the profits made by the assessee on the sale of she shares, it is seen that the assessee has sold shares after substantial capital appreciation. For example 300 shares and 200 shares of Adani Exports Ltd. were purchased on 12/09/2007 for Rs.1m80,855/- and after holding the same for 16 days and 20 days, the same were sold for Rs.2,79,666/- thereby giving a profit of 45% and 68.53% respectively to the assessee. The shares of Cairns Inds. Were held for periods ranging from 183 days to 235 days and the average profit earned was 14%. 5600 shares of Essar Steel were purchased on 01/04/2007 for Rs.56,000/- and sold o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable with the assessee. It is true that the taking of or not taking of loans is not the sole determining factor for coming to the conclusion whether the assessee is a trader or an investor in shares. However, this is an important parameter to be taken into consideration for deciding the question as to whether a person is an investor or trader. Totality of facts and parameters, as laid down by the Hon'ble Courts as well as CBDT have to be taken into consideration in deciding the question. The fact that the assessee has not taken loan to buy shares is an important fact I his favour. 5.6 ..... The assessee is also not purchasing, selling and repurchasing the same scrips. This shows his intention of being an investor. Normally, a trader pur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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