TMI Blog2014 (1) TMI 1707X X X X Extracts X X X X X X X X Extracts X X X X ..... not made out that it is a case of re-entered transactions predominantly by the Revenue Authorities. There is no allegation in the orders of the Revenue Authorities that the impugned shares sold by the assessee are taken out of the lots held as stock-intrade. Considering the above factual matrix on this case as well as transactional data of 61 scrips, 69 transactions, purchase turnover of ₹ 37.69, sales turnover of ₹ 39.19, we are of the opinion that the claim of the assessee should be accepted. As such the holding period alone is not a conclusive to decide if a transaction is of investment or trading transaction. Intention of the assessee is relevant and there is no reason made out by the AO to conclusively to determine that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he activity is in the course of business . 3. At the outset, ld Counsel for the assessee mentioned that the grounds raised in the appeal by the assessee are against the decision of the Revenue Authorities in Treating the sale consideration of shares and mutual funds as income of business nature and not the capital gains as reported by the assessee in the return of income. In this regard, Ld Counsel brought our attention and mentioned that the assessee earned short term capital gains amounting to ₹ 1,49,222/- on sale of shares and also ₹ 17,22,470/- on sale of mutual funds. Assessee also reported long term capital gains on sale of mutual funds as well as shares about which there is no dispute. The dispute is only with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39 which is relevant for the proposition that the investment in the mutual funds in an investment activity and the gains on transfer of mutual funds should be held as capital gains, not as business income. Bringing our attention to page 93 of the paper book, which is a copy of the order of the Tribunal in the case of Mr. Chetan R. Parikh vs. ITO vide ITA No. 1569/M/2010 (AY 2006-2007) dated 25.5.2011. He read out the terminal operation of para 4 of the said order of the Tribunal which read as under: 4............However, the units of mutual funds are not generally trading instrument because of comparatively low fluctuation and number of transactions in units are also at large. Therefore, in our view the purchase and sale of units has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the detailed transactions provided chronologically (placed at page 29-31 of the paper book), Ld Counsel mentioned that the assessee has record of selling of some scrips on a date, which are purchased in different lots on different dates. Ld AR mentioned that, there is no record of re-entry into the transactions. Even if it re-entered, the frequency of such re-entered transactions is minimal and certainly not a predominante. At the end, Ld Counsel submitted that the claim of the assessee should not be disturbed considering the investment conduct of the assessee together with number of scrips, transactions and the turnover particulars furnished at page 25 of the paper book. 6. On the other hand, Ld DR relied heavily on the orders of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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