TMI Blog2012 (11) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs under section 143 (3) of the Act, the Assessing Officer noticed that the assessee has claimed STCG of ₹ 2,78,77,456/- under section 111A of the Act while computing the total income for the year under consideration. Vide Order sheet entry dated 4-11-09 the assessee was asked to furnish the details of STCG. After considering the submission and the details furnished by the assessee, the Assessing Officer was of the opinion that the assessee has indulged in huge frequency of payments in shares throughout the year. Further, the holding period of these shares was also very short. The assessee was asked to show cause as to why STCG so claimed may not be considered as business income. The Assessing Officer went on to discuss certain judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, relied upon the decision of the ITAT, Jaipur Bench in ITA.No. 1103 to 1105/JP/2010 pertaining to the assessment year 2003-2004 to 2005-2006 and argued that the Co-ordinate Bench has held that the shares which had been held for more than a year should be treated as shares held as Investment and the profit arising from sale of such shares has to be considered as capital gain in respect of purchase and sale of the transactions where holding period is less than 30 days the profit or loss arising from such transactions to be considered as business income. The learned D.R. pointed out that in the case of the assessee the holding period being very less, the decision of the Jaipur Bench deserve to be followed. 4. Per Contra, Counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, to be based on its own factual situation. In the present case, the assessee had dealt the majority of shares for a very long time resulting into short term capital gain. It is possible for an investor to sell shares after holding for less than a year to reshuffle portfolio. We also find that the CIT(A) has correctly pointed out that the assessee has engaged themselves in share transactions only of 69 days in a year which itself shows that the assessee is not trading in shares which requires full time engagement and a systematic and timely devotion. It is also not in dispute that in all the shares, the assessee has taken delivery and has paid STT on each transaction. There was no opening stock nor there is any closing stock of scrips. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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