TMI Blog2014 (12) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the assessee that accounts were maintained by the assessee in two separate capacities i.e. trader and investment and never treated the same as holdings of shares as stock in trade which clarifies the intention of the assessee. - Decided in favour of assessee. - Income Tax Appeals No.43, 44 & 47 to 58 of 2014 - - - Dated:- 19-12-2014 - Mr. P.K. Jaiswal AND Mr. D.K. Paliwal, JJ. For the Appellant : Veena Mandlik ORDER Shri R.L. Jain, learned Senior Counsel with Ms. Veena Mandlik, advocate for the appellant. Heard on the question of admission. This order shall govern disposal of Income Tax Appeals No.43, 44 and 47 to 58 of 2014. For the sake of convenience, facts are taken from Income Tax Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Assessing Officer found that the assessee could not produce any satisfactory reason in his favour. The assessee placed reliance on various case laws, but as per the Assessing Officer, they were distinguishable from the instant case and observed, as under: It is evident from the copies of bank statement submitted by assessee that assessee has not invested his saving or surplus fund in shares but he has borrowed funds from M/s. Krishidhan Seeds Limited and utilized these funds for his own benefit, as discussed above. He has carried out transactions of shares of more than 11 crore during the year under consideration. It proves that he is engaged in the business of trading of shares. The case laws relied upon by the assessee; th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, the respondent assessee filed further appeal before the Income Tax Appellate Tribunal, Bench at Indore. The Income Tax Appellate Tribunal, after considering the facts and circumstances of the case, allowed the appeal by impugned order dated 20th December, 2013 and deleted the addition due to following reasons: (i) The assessee held that the shares in his books as investor and was not having office or administrative setup. (ii) The assessee did not pay any interest on the funds borrowed and there was not a single instance where the assessee squared up the transactions on the same without taking the delivery of shares. (iii) The ITAT held that the assessee made investment in shares only with the intentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular No.4/2007 dated 15.06.2007. 12. The learned ITAT while deleting income observed: In the present appeal, we note that the assessee made investment in shares with intention to earn dividend income on appreciation of price shares. Therefore, it cannot be said that the assessee was doing business. More specifically when the assessee either utilized his own funds / family funds or did not pay any interest and depicted the transactions in shares under investment portfolio. During hearing, it was also explained by the learned counsel for the assessee that accounts were maintained by the assessee in two separate capacities i.e. trader and investment and never treated the same as holdings of shares as stock in trade which clarifies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hares. Instruction No.1827 dated 31st August, 1989 was supplemented by CBDT Circular No.149/287/2005TPL [reported in 210 CTR 29 (St.)] advising the Assessing Officers that the principles contained in the circular should guide them in determining whether, in given cases, the shares are held by the assessee as investment (and therefore, giving rise to capital gains) or stockintrade (and therefore, giving rise to business profit) by further opining that no single principle would be decisive and total effect of all the principles should be considered. If the number of transactions are analyzed, we note that, in a computer based trading system / efiling, the figures, being split up, give misleading high figures, reflecting the individual compone ..... X X X X Extracts X X X X X X X X Extracts X X X X
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