TMI Blog2016 (9) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee submitted that there is evidence to show that shares were held for a period between 18 and 39 months. We are unable to find any evidence in that regard except that the shares of McDowell and Macmillan were according to him held for the period between 18 and 39 months. It is nobody’s case that the gains being subject matter of discussion arose out of sale of those shares. On the contrary, the case of the assessee himself is that “the transactions this year are mere change of investment portfolios from bad performing sectors to good performing sectors.” Bad performing shares could not have yielded profit to the assessee as rightly pointed out by the assessing officer. For the aforesaid reasons we are inclined to think that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated as business transactions and such the income to be determined as business profit under section 28 of the Income tax Act but the Income Tax Appellate Tribunal held otherwise ? The question whether any particular transaction is on account of the investment or on account of the trading essentially is a question of intention. Intention is locked in the mind of the person concerned. Intention can only be ascertained from the circumstantial evidence including contemporaneous Books of Accounts of the assessee. Almost similar view was taken by the Supreme Court in the case of CIT vs. ASSOCIATED INDUSTRIAL DEVELOPMENT CO.(P) LTD. reported in (1971) 82 ITR 586 at Page-590 as follows: It can hardly be disputed that there was no bar to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f business income. The CIT(Appeals), however, held otherwise and his reasoning is as follows : It is seen that the appellant has consistently been showing its shares as investments and the same has been accepted as such by the department in earlier years and the Assessing Officer has not brought in any evidence in his Assessment Order for the present year to the contrary The learned Tribunal has upheld the finding of CIT(A) in dismissing the appeal preferred by the revenue. We are inclined to think that neither the assessing officer nor the CIT (Appeals) insisted upon the assessee to produce evidence from its records to show that the transactions were intended to be investments and not mere dealing in shares. The substance of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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