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TMI Blog2013 (2) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... res should be assessed under the head 'capital gains' and not under the head 'business' as has been done by the Assessing Officer. 2. The facts of the case are that the assessee is a Director in SICGIL Industrial Gases Ltd., filed return of income on 26.7.2006 declaring income of A.26,95,190/-. The assessee reported long term capital gains in respect of sale of shares of A.34,99,799/-. The assessment was completed under sec.143(3) of the I.T. Act on 29.12.2008 determining income at A.60,94,989/-. The Assessing Officer, while completing the assessment, assessed the income from sale of shares under the head 'income from business' instead of long term capital gains as admitted by the assessee. The Assessing Officer was of the view that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as business in the place of investment, the transactions are delivery based transaction and no borrowed funds were used for making such investments and the plethora of decisions quoted support his plea that the income from the Long Term Capital Gains/ Short Term Capital Gains should be taxed under these heads only and not treated as business income. 5.1 There is no dispute about the fact the appellant is indeed dealing in investment in shares in the past for many years and offered the same under the head Capital Gains. It is also true that the Finance Act 2004 imposed Securities Transaction Tax on sale and purchase of shares whether the assessee earns profit or not or suffers a loss and simultaneously the legislature exempted Long Term C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer that there were transactions without any delivery. The intention of the appellant cannot be read from his mind but it reflects in his conduct, the way he treats the transactions. The appellant has not borrowed any money for investing in shares and used his own surplus funds and these facts are borne out on record. Yet another aspect, as rightly stressed by the learned Authorised Representative is the fact that the appellant has received substantial dividend and that is also disclosed in the return of income filed. After considering the totality of the facts, I hold that the transaction of purchase and sale of shares by the appellant cannot be treated in the line of trading in shares nor can be treated as an adventure in the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X
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