Swatiben Anilbhai Shah v. DCIT (2021) 187 ITD 843 / 198 DTR 225 / 209 TTJ 1025 (Ahd.)(Trib.)/Atul Hiralal Shah v. Dy.CIT ( 2021) 187 ITD 843/ 198 DTR 225/ 209 TTJ 1025 (Ahd)(Trib)

S. 45 : Capital gains-Purchase and sale of shares-Investment portfolio-Assessable as short term capital gains and not as business income. [S. 28(i)]

Assessing Officer  treated the  gains on investment portfolio as business income. On appeal the Tribunal held that total number of transactions of purchase was only five and sale was barely seven. Accordingly   frequency of purchase and sale instances were quite few justifying intention of assessee to purchase shares as capital asset. Tribunal directed the  AO to assesseee as short term capital gain. (AY. 2008-08, 2008-09)