TMI Blog2015 (10) TMI 2595X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the days spent by the assessee on stock market at page 23 of the paper book. A perusal of the same would show that the assessee has spent on an average only 6 days in a month on share trading activity. The assessee has also earned dividend income of ₹ 46.25 lakhs. All the factors discussed above, in our view, shows that the intention of the assessee was mainly to act as investor only. Accordingly, we are of the view that the gains arising on sale of shares should be assessed under the head Capital gains only. Accordingly, we set aside the order of Ld CIT(A) and direct the AO to assess the profits arising on sale of shares as Capital gains only. - Decided in favour of assessee. - I.T.A. No.2933/Mum/2013 - - - Dated:- 16-10-201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od. The AO also noticed that the assessee has borrowed funds from different parties. Accordingly, he assessed STCG of ₹ 1.13 crores as income from business. The ld. CIT(A) also confirmed the order of the AO. Aggrieved, the assessee has fled this appeal before us. 4. The Ld A.R submitted that the assessee is having other business activities also and hence dealing in shares cannot be considered as the business of the assessee. He further submitted that the assessee has earned dividend income of ₹ 46.25 lakhs and further he has not borrowed any funds for the purpose of investment in shares. He submitted that the assessee has got sufficient capital balance more than the investments made in the shaers. He further submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se law:- (a) Jayashree Pradeep Shah (131 ITD 326) (b) Karamchand Thapar (176 ITR 535)(SC) (c) New Era Agency (68 ITR 585)(SC) 6. We heard the parties and perused the record. The dispute is with regard to the nature of receipt of profit arising on sale of shares. The assessee claims the same to be capital gain, whereas the AO has assessed the same as business income of the assessee. It is well settled that the true nature of the transactions has to be determined by considering various factors. In this regard, the Hon ble Courts as well as the CBDT has prescribed various criteria on the basis of which the true nature of transactions could be ascertained. Hence, the nature of transactions would be dependent upon the facts prevailing in each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee s claim of Long term capital gains has been accepted by the AO. Hence, in our view, the low period of holding in respect of certain scripts may not be considered to be the sole determining factor. The assessee has furnished details of the days spent by the assessee on stock market at page 23 of the paper book. A perusal of the same would show that the assessee has spent on an average only 6 days in a month on share trading activity. The assessee has also earned dividend income of ₹ 46.25 lakhs. 8. All the factors discussed above, in our view, shows that the intention of the assessee was mainly to act as investor only. Accordingly, we are of the view that the gains arising on sale of shares should be assessed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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