MALINI AGARWALLA,MUMBAI vs. DCIT 12(3), MUMBAI

is as to whether the profits on the sale of shares during the year which have been shown by the assessee as Capital Gains arising out of investment in the shares in question as an investor is to be assessed under the head "Income from Business" or whether the same is to be assessed under the head "Capital Gains" as disclosed by the assessee in his return of income. In the case of CIT Vs. H. Holck Larsen, 160 ITR 67(SC) been held that the question whether the transactions of sale and purchase of shares were trading transactions or whether they were in the nature of investment is a mixed question of law and facts. In the case of P .M.Mohd. Meerakhan

73. ITR 735 (SC), it has been held that the answer whether a transaction is adventure in the nature of trade or not must necessarily depend in each case on the total impression and the effect of the relevant factors and circumstances. 2.6 It is well settled that the intention at the time of purchases is the most important factor to decide whether the purchases were made as a trader or whether the same were made as an investor. This intention can be gathered from subsequent conduct of the assessee in dealing with these shares. An investor purchases a share with a view to earning income in the form of dividend and for appreciation in 4 value over a long period of time and is not motivated to sell shares on each and every rise in the value of shares which are, in fact the attributes of a trader. For deciding the question whether the profit from sale of share is capital gain or business income, no single thumb rule can be applied as held by the different Hon'ble Courts as well as by the CBDT in Circular No. 412007. Various Hon'ble Courts and Benches of the Hon'ble Tribunal and CBDT have laid down parameters/criteria for judging whether the activity of the assessee was in the nature of an investment activity or a trading activity. These parameters include intention of the appellant at the time of purchase of shares, frequency of transaction, continuity, volume, holding period, treatment in the books of account, use of borrowed/own funds and devotion of time to the activity etc. However, the Courts/Tribunals have also held that individual parameters would not be decisive and it is only the cumulative effect of all these criteria which would be important to decide whether the assessee was an investor or a trader. Keeping the above parameters in mind, it has to be decided whether the assessee can be treated as an investor or he is to be treated as a trader and whether the income in question is to be taxed under the head Capital Gains or under the head Income from Business & Profession, It is also pertinent to mention that the various Courts and Tribunals as well as the CBOT have laid down that an assessee can have two portfolios of shares - one for trading and one for investment purposes. Therefore, the assessee can be both a-dealer in shares as well as an investor in shares at the same time. 2.7 Adverting to the facts of the case, it is an undisputed fact that appellant has earned income from STCG i.e. Rs.21, 1 0,696/ - during the year and, in any case, this does not require much time to be devoted by .the assessee. During the current financial year in question, the assessee is engaged in dealing in shares, whether in the derivatives segment or in speculative transactions or the purchase and sale of shares in which he has taken delivery. Although the activities relating to derivatives and speculative transactions would always be in the nature of business transaction by virtue of the provisions of the Act and the transactions in delivery based shares may not always be so (which may also be in the nature of investment activities depending on the facts and circumstances of the case), the fact that the assessee is a share trader engaged in the activities relating to the purchase and sale of shares, whether delivery based or not, is an important indicator which cannot be ignored while deciding whether the assessee has acted as a trader or as an investor in respect of the shares, gains/income from which is claimed byhisto be in the nature of capital gains. 2.8. In my opinion, the number of days on which the assessee has entered into transactions, though an important indicator, will not be the determining factor of the nature of activities that the assessee engaged in majority of cases is whether trading or or investment. Rather, it is the nature of transactions and how he has dealt with the assets in question which would decide the issue. It is the total impression of the parameters laid down which will have to be examined to find the answer. From the facts on record, it is apparent that the assessee has devoted substantial time to his activities relating to share dealings. 2.9 As regards the intention of the assessee, it has been held by various Hon'ble Courts that the intention of the assessee at the time of purchase of asset is the most important criteria to decide whether the same were purchases as trading assets or were bought as an investment. Only because the shares have been disclosed in the Balance Sheet as an investment would not determine or prove that the shares were purchased as a capital asset since it is well settled law that entries in the books of accounts are not determinative of the true nature of the transactions. Further, assessee's contention that he has taken delivery of shares and, hence, the profits should be assessed as capital gains cannot be accepted since this cannot be and is not the criteria for determining the nature of income. To determine the nature of the transactions or whether the assessee has acted as a trader or investor what will have to be examined is as to how she has dealt overall with her assets after the purchases and how she has acquired the said assets. A trader buys for the purpose of reselling at a profit. He does not wait for capital appreciation. He tends to sell the shares immediately after the purchases, even at a loss, if the factors so demand, so that the can utilize his capital and rotate it in the business. To purchase shares and then to wait for appreciation in their value in the long term is the classic example of an investor. In Trishul Investment Ltd., reported in 305 ITR 434 (Mad), the Hon'ble Madras High Court has held that the rest to decide whether an activity was in the nature of investment or an adventure in the nature of trade has a very thin line of demarcation. It held that "even a single instance of transaction can be regarded as business and even multiple transactions sometime are deemed as investments. So, the criteria for deciding whether it is investment or business is that the intention of the assessee, viz. whether assessee's real intention is to invest or the intention was in the nature of trade." 2.10 An examination of the details of transaction filed by the assessee in respect of the shares on which he has claimed capital gains reveals that the overall impression that can be gathered is that the assessee has dealt with the shares as a trader and not as an investor. 2.11 From analysis of details of sales & purchase of shares, it is noticed that for share holding of less than 6 months profit is Rs.21,10,695/- and between 6 months to 1 year profit is Rs. Nil. 2.12 The contention of the assessee that the shares were being reflected in the Balance Sheet as investments would not be determinative of the true nature of the transactions when the intention of the assessee in dealing with the shares itself shows that the shares have been dealt with as trading assets and not as investments. 2.13 In view of the aforesaid reasons, I am of the opinion that the assessee was a trader and not an investor in the shares in respect of which he has claimed short term capital gains and which is the subject matter of the appeal. Hence, the profits are to be assessed under the head "Profits & Gains of Business & Profession" and not under the head "Capital Gains". Therefore, the action of the A.D. of treating the profit of Rs.21,10,696/- as business income is upheld. This ground of appeal filed by the assessee is dismissed.

5. We have carefully considered the rival submissions and perused the material placed before us including the orders of the authorities below. The assessee has maintained two portfolio one is for investment and other for trading and the incomes accruing from both the portfolios were treated accordingly as capital gain and business income respectively. The ld. AR during the course of hearing a specific query was put to him qua sources of funds used for the investment of shares which yielded STCG which was replied by him by referring to the ledger account of HDFC account no.04142 in the books of the assessee pointing out that the maturity proceeds of units of Birla Sunlife liquid Plus Funds amounting to Rs.1.00 crore (Rs.25 lakhs on 14.1.2008, Rs.50 lakhs on 16.1.2008 and Rs.25 lakhs on 18.1.2008) were used to purchase the shares of Bharat Heavy Electricals 1000 shares, L&T 600 shares and Reliance communication 3600 shares, Reliance Energy ltd 1400 shares, Reliance Industries 900 shares through Prabhudas Lilladhar Pvt Ltd a broker for a total consideration of Rs.99,90,396.53. These shares which were sold on 5.2.2008 for a total consideration of Rs.1,19,11,896/- thereby making a profit of Rs.19,21,500/- within a period of two days. According to the AR the sources of fund for purchase of these shares have out of mutual funds maturity of Sunlife Liquid Bonds which was invested by the assessee and this capital gain was earned within two days in the highly fluctuationing and volatile market. We find that this gain constituted almost 91.04 % of the total short term capital gain shown as per details of short term capital gain filed by the assessee at page 3 of the paper book. This is further confirmed by the copies of cover notes in respect of purchase and sale filed at page 51 and 52 respectively of the paper book. We also find that from the balance sheet 6 and 7 of the paper book that all the investments in shares were shown in the balance sheet, whereas the unsold shares at the year end in the trading division were shown as closing stock of shares. In the preceding year also, we find, that the department has accepted the treatment of STCG on the investment division and profit from business in trading division and therefore the stand of the revenue is in variance to the principle of consistency in the in the pattern of assessment. Under these facts and circumstances,we are of the view that the finding of the lower authorities are not correct and cannot be sustained as the facts on records amply proved the fact of having earned short term capital gain out of investments held for a short period out of proceeds from the units of Birla Sun Life which were also held as investments. We are, therefore, inclined to set aside the orders of lower authorities and direct the AO to treat the income of Rs.21,10,696/- as STCG and not as business income. The appeal of the assessee is allowed.