TMI Blog2017 (7) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax v. Vinay Mittal [ 2012 (5) TMI 89 - DELHI HIGH COURT] referring to case of Rewashanker A. Kothari [ 2006 (1) TMI 80 - GUJARAT HIGH COURT] held that one of the most important tests outlined in that decision was as to whether the transactions in the shares were of a large volume and were frequent and whether there was continuity and regularity in such transactions of purchase and sale. It was noted that if there was repetition and continuity coupled with the magnitude of the transactions bearing a reasonable proportion to the holding then it would be an important circumstance in considering such activity to be in the nature of trade and business. All the circumstances outlined in the decision of the Delhi High Court and that of the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal) was competent to delete the additions made by the Assessing Officer on account of transaction on sale and purchase of shares? 2. Whether ITAT was right in law to delete the additions made by the Assessing Officer on account of legal expenses? 03. It may be relevant to point out that the issue with regard to the shares held by way of investment or by way of stock-in-trade is quite often a mixed question of fact and law and not purely a question of law or fact. In the present case also, we find that certain facts need determination before the said question no.1 can be answered. 04. The tribunal while examining the issue has referred to a decision of the Delhi High Court in the case of Commissioner of Income Tax v. Vinay Mittal : [2012] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the conclusion as to whether the said shares were bought and sold as a part of trading activity or as a part of investments. All the circumstances outlined in the decision of the Delhi High Court and that of the Gujarat High Court as also the guidelines of the Central Board of Direct Taxes referred to in the impugned order needed to be considered and then a view was required to be taken on the totality of circumstances. Unfortunately, that has not been done. It is for this reason that we feel that the present appeal ought to be disposed of by setting aside the impugned order and by remitting the matter to the tribunal for a fresh consideration in the manner indicated above. It is ordered accordingly. Since we are in any event remitting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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