9911796707
TMI Blog2016 (9) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... 006-07. Since common issues are involved in both the appeals, we proceed to dispose of the same by this consolidated order. 2. Briefly facts of the case are that the respondent-assessee is an individual. He is mainly engaged in dealing with share transactions. He was maintaining both trading portfolio as well as investment portfolio. During the previous year relevant to assessment year 2005-06, assessee has shown shares held as stock-in-trade in earlier year i.e. October 2004 as investment and offered the gains arising out of sale of those scrips under the head short-term capital gains. The Assessing Officer (AO) held that though short-term capital gains should be assessed as business income, as according to the AO, assessee had failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as business income and only from AY 2005-06 onwards, i.e after introduction of Securities Transaction Tax, the assessee has switched to claim the same E S short term capital gains to avail the taxation benefit of 10%. 5. For these and other grounds that may be urged at the time of hearing, it is prayed that he order of the C[T(A) in so far as it relates to the above grounds may be reversed and that of the Assessing Officer may be restored. 6. The appellant craves leave to add, alter, amend and / or delete any of the grounds mentioned above." 5. The revenue raised the following grounds of appeal in ITA No.1165/Bang/2013 for the assessment year 2006-07: 1. "The order of the learned CIT(A) is opposed to law and facts of the case. 2. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d rival submissions and perused material on record. The issue in present appeal is regarding the nature of income from share transactions entered into by the respondent-assessee. The issue, whether the share transaction in a particular case should be treated as investment activity or trading activity is highly debatable issue, needless to mention that each case depends on its own facts and circumstances. There are various factors which are to be taken into consideration for deciding the particular issue such as frequency, volume, entry in the books of account, nature of funds, holding period and intention at the time of purchase of shares are relevant in deciding true nature of transaction and no single factor is conclusive. The most import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstantiate change in the method of treatment i.e. from trading to investment portfolio. Thus, the question is essentially a matter of fact and the respondent-assessee had failed to substantiate its claim by producing relevant evidence before the AO. The CIT(A) had merely allowed the appeal by holding that the volume and frequency of transaction cannot be conclusive evidence against respondent-assessee. No doubt, as per CBDT circular No.4/2007, the assessee is permitted to maintain two portfolios i.e. trading as well as investment portfolio but the assessee is duty bound to produce evidence that certain transactions were intended to be by way of investment and some are by way of business transactions. As the issue has to be decided based on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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