9911796707
TMI Blog2023 (9) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... is against the order of Ld. CIT(A) confirming the addition of Rs. 20,66,939/- made by The Assessing Officer (in short ld. 'AO') wherein the amount was treated as business income as against short term capital gain shown by the assessee from sale of shares. 4. The facts in brief are that Ld. AO observed from the details furnished by the assessee that the assessee has shown income from long term capital gain, short term capital gain and speculation profit from sale of shares in the return of income. Ld. AO issued notice to the assessee to show cause as to why the short term capital gain shown on sale of shares during the financial year 2009-10 which were purchased during the year itself and sold within a period of one to two months sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod, i.e. only one or two months. Looking at the frequency, magnitude and volume of the transactions, the Assessing Officer held that these transactions were to be considered as Business Profit and not Short Term Capital Gain. Hence, profit of Rs. 20,66,939/- was held as Business Profit. This amount was reduced from the Short Term Capital Gain shown. 5.2.2 The appellant has given detailed arguments as to why the profit should be considered as Short Term Capital Gain and not business profit. The appellant has claimed that the purchase of these shares had been shown in the books as investments and not stock-in-trade. It had followed AS-13 of ICAI and has considered the value at cost instead of AS-2 required to be followed for 'stock-in-trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has clearly maintained the purchases between the two portfolios. In our opinion, it is the decision of the assessee as to which purchase to be treated as investment and which to be treated in trading section. The mere fact that the assessee has purchased shares and disposed them off within a short span of time will not justify the gain to be treated as business income while the same was shown in the investment portfolio in the books of the assessee. In our opinion, the decision of both the authorities below is not sustainable as this being a factual issue and the assessee has maintained the books clearly maintaining the dichotomy in the purchase of securities in the books of accounts. The case of the assessee finds support from the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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