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TMI Blog2013 (9) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... e also similar therefore, these appeals are heard together and being disposed off by this Composite order. 3. We note that the registry issued a defect memo pointing out the delay of 9 days in filing the appeal which has been rectified by the assessee by explaining that there was a mistake in the form 36 with respect to the date of communication of order. The assessee mentioned the date of communication as the date of orders itself whereas date of communication of the impugned order is 17.4.2012. The assessee has filed a copy of the postal envelop by which order was delivered to the assessee. Thus, the assessee submitted that the appeals of the assessee are within the period of limitation. We have verified the record and found that the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CIT(A) has confirmed the action of the AO on the ground that the assessee himself deals in future and options which is akin to trading in shares and securities. Further the magnitude of transaction coupled in repetitive nature of transactions in several shares clearly indicate the intention of the assessee to indulge in the nature of trade/adventure. 6. Before us the Ld. AR of the assessee has submitted that the assessee has transacted only in 30 scrips during the year under consideration and total number of transaction are 79. He has further submitted that the holding period of transactions in majority of the cases is from 4 months to 364 days which resulted in Short Term Capital Gain. The Ld. AR has further submitted that the CIT(A) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansactions the Ld. AR has explained that in some of the scrips the assessee has re-enter because after a long time the assessee existed from the particular scrips and then again purchase but the purchased and sale of the shares are only with the intention of investment and not trading. When the assessee has earned substantial Long Term Capital Gain in comparison to the Short Term Capital Gain then the re-entering in the same scrip itself is not a deciding factor. He has relied upon the various decisions of this Tribunal and submitted that when the assessee is maintaining two separate port folio one is for investment and another for other activity including future and options then while deciding the issue of Short Term Capital Gain the activ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dividend income of Rs. 12.5 lakhs. Both the AO and CIT(A) have taken the number of transactions as 525 which we find is not correct because the order of purchase and sale of a single transaction on same day has been executed in various small lots as per the availability of the number of shares to meet out the order. Therefore, a single order is bifurcated into a number of transactions but in fact it remains a single transaction as far as the transactions of purchase and sale of single scrips is concerned. It is evident from the details that a single order is executed as per the availability of the shares on the electronic platform of the stock exchange and therefore a single transaction has been shown as 5 to 10 transactions and consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being investment and not as stock in trade. There is no quarrel on the point that the assessee can have two port folios as held by the Hon'ble Jurisdiction High Court in case of CIT Vs Gopal Purohit (supra). It is to be noted that the scrips which were held by the assessee for more than one year before exist from the same then the re-purchase of the same scrips would not ipso facto lead to the conclusion that the assessee has carried out the trading activity in the shares. It is irrefutable fact that the investment in the shares is not made for indefinite period. The ultimate motive of investment is to earn the gain due to appreciation of the value. If there is enough appreciation over a long period of time then the decision of existing fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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