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TMI Blog2013 (1) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... . The only issue in the instant appeal is the character of the income of Rs. 30,32,957/- arising to the assessee on the sale of shares, i.e., whether as 'capital gains' on transfer of short term capital assets, having been sold within less than a period of 365 days of the date of acquisition, or as 'business income'. 3. We have heard the parties, and perused the material on record. 3.1 The primary facts are not in dispute, and both the assessing as well as the first appellate authority have arrived at their different conclusions on the same set of basic facts, i.e., with regard to the various parameters in relation to the share transactions entered into during the year, viz. the number of scrips held, purchased and sold during the year; i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's investment behaviour, thus, clearly exhibits of him as being an investor in equity shares, which is also borne out by the fact that, apart from direct investment in shares, which is at Rs. 40.37 lacs (as at the beginning of the year), there is also indirect investment therein, i.e., through the Mutual Fund (MF) route, at Rs. 63.45 lacs. The total investment (as at the beginning of the year) thus is at Rs. 103.82 lacs. The investment in Mutual Funds, the details of which are not on record, we are aware, could well be in bonds or other debt instruments - the assessee describing them as 'Liquid Mutual Fund Investment', with income from the same for the year being at Rs. 2.44 lacs, which, as it appears, is by way of dividend thereon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oward this that the assessee's statement of shares sold during the year, on which profit of Rs. 30.33 lacs stands earned (Ann. I), also submitted both before the AO and the ld. CIT (A), becomes relevant. The same, due to its significance, is also made a part of this Order (as Ann. I). We summarize the transactions as under: (Amount in Rs. lacs) Scrip HP SV Profit Profit (%) Category 1 8-34 days 52.29 5.38 10.29 Category 2 4-6 months 59.79 24.95 41.73 Total 112.08 30.33 27.06 HP => Holding Period, SV => Sale Value Category 1 comprises 3 scrips, viz. Sterlite Industries Ltd., Kirloskar Ferrous and Gujarat Sidhi Cement, while the Category 2 comprises the balance 3 (three) scrips ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uick succession. We are also, in so holding, guided by the assessee's investment behaviour that led us to the finding of the assessee being an investor in equity shares qua his shareholding as at the beginning of the year. The entire gain of Rs. 30,32,957/- is thus a short term capital gain. 4. In conclusion The question as to whether the assessee's share transactions are in 'capital assets', though of short term tenor, or of trading stock, is essentially one of fact, requiring an analysis of the relevant data. The same, being not in doubt, was, therefore, subject to an objective examination, to find of the assessee exhibiting predominantly investor attributes qua the shares and other liquid investments held by him as at the beginning of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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