TMI Blog2015 (4) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... hose hold as stock in trade. In this case the assessee has not produced any such evidence. The fact remains that the assesee has purchased and sold these shares within a period of one week’s time and gained ₹ 66,20,920/-. Though purchased in previous year they were not accounted for or classified as investment. This coupled with the fact that the entire purchase has been sold shows that the assessee has never intended to keep these shares as investment. Commissioner of Income- Tax (Appeals) was justified in confirming that assessment of Short Term Capital Gain as Income from Business. - Decided against assessee. - ITA No.1895/Kol/2012 - - - Dated:- 30-6-2014 - Mahavir Singh and Shamim Yahya, JJ. For the Appellant : Shri T K S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct notes submitted by the assessee, it appeared that the assessee has also shown the sales of M/s.Arvind Chemicals Ltd which has been shown as share trading income. That from the details submitted during the course of assessment proceedings, it appeared that the assessee has shown income from purchase and sale of shares of M/s. Gujarat Coke Ltd as Short Term Capital Gain since the profit margin was very high and at the same the purchase and sale of shares of M/s.Arvind Chemicals Limited has been shown as share trading income since there was a marginal profit/loss. That from the above facts, it is obvious that the assessee has wrongly claimed the income on sale and purchase of shares of M/s.Gujarat NRE Coke Limited which is actually a normal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account. 5. Thereafter the ld. CIT(A) made further analysis of the assessee s transactions and referred to several case laws. The ld.CIT(A) concluded as under:- 21. The frequency of buying and selling of shares by the appellant in the investment portfolio in the earlier year was reasonably high; only one demat account; the period of holding was less; the high turnover was on account of frequency of transactions; the assesses had dealt in delivery trading purely with the intention of making quick profits on a huge turnover; the period of holding of a majority of the stock was few days in case of quoted shares; there is no long term capital gain in this year or earlier year. The assesses did not even hold on to at least some part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions were only in the nature of trade. The character of a transaction cannot be determined solely on the application of any abstract rule, principle or test but must depend upon all the facts and circumstances of the case. 23. The Hon ble ITAT Jaipur Bench B in the case of Assistant Commissioner of Income-tax, Circle-6, Jaipur v. Smt. Kavita Devi Agarwal (Supra) has held that in case the shares have been purchased or sold within 30 days then the profit or loss arising from such purchase and sales of shares is to be considered as business income;. As per the various facts circumstances mentioned in Para 7 and after considering the observations of the Assessing Officer in the assessment order and submissions of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in trade is a matter which is within the knowledge of the assessee and it is for the assessee to produce evidence from his records as to whether he maintained any distinction between shares which were hold by him as investments and those hold as stock in trade. (CIT v. Associated Industrial Development Co.Ltd. [1971] 82 ITR 586 (SC). (e) No single fact has any decisive significance and the question must depend upon the collective effect of all the relevant materials brought on record. Jank Ram Bahadur Ram v. CIT [1965] 57 ITR 21 (SC). The Hon ble High Court of Karnataka in the case of Commissioner of Income tax, Central Circle, Bangalore V. Aravind Prakash Malpani in IT Appeal NO.1131 of 2006 dated January 4, 2011, reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 2007-08 this purchase has not been accounted for. Hence there is no classification of these shares as investment in the assessee s accounts in the year of purchase. Subsequently on 07.04.2008 the shares were sold and the assessee claimed short term capital gain of ₹ 66,20,920/-. Hence it is evident that the purchase and sale transaction in the shares have been completed in a period of one week s time. The purchases made in the earlier period has not been accounted for in the earlier period and consequently the same were not classified as investment. Now when the shares have been sold in such a short period and the shares are being dealt with by the assesee both trading and investment account the onus is on the assessee to prove th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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