Sh. Manmohan Singh Thandi, Panchkula V. ACIT, Panchkula

ITA 1416/CHANDI/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5343 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-04-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 16-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S KEMWAL
• Keywords: Business income; Advance ruling
• Section: 234B; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL,A BENCH, CHA NDIGARH BEFORE SHRI D K SRIVASTAVA, AM AND MS.SUSHMA CHOWLA , JM ITA NO.1416 /CHD/2010 AY: 2006-07 SHRI MANMOHAN SINGH THANDI V. ACIT, CIRCLE, PANCH KULA THANDI FARM. VILLAGE RAILY OPP. SECTOR 20, PANCHKULA PAN: ABTPT-0274B APPELLANT BY: SHRI TEJ MOHAN SINGH RESPONDENT BY: SHRI S.S.KEMWAL ORDER THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER PASSED BY THE CIT(A) ON 14.10.2010 ON THE FOLLOWING GROUND S : 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE ADDITION OF RS.19,77,712/- TREATING T HE INCOME SHOWN UNDER THE HEAD SHORT TERM CAPITAL GAIN AS BUSINE SS INCOME WHICH IS ARBITRARY AND UNJUSTIFIED. 2. THAT THE LD. CIT(A) HAS ERRED IN TREATING THE SH ARES HELD PURELY AS AN INVESTMENT TO BE THE BUSINESS OF THE ASSESSEE WITHOUT APPRECIATING THE EXPLANATIONS AND REPLIES REFERRED TO DURING THE COURSE OF PROCEEDINGS BEFORE HER AND AS SUCH THE OR DER IS ARBITRARY AND UNJUSTIFIED. 3. THAT THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDI NG THE CHARGING OF THE INTEREST U/S 234B OF THE INCOME-TAX ACT WHIC H IS NOT CHARGEABLE IN THE INSTANT CASE. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE FILED HIS RETURN OF INCOME ON 26.10.2006 DECLARING TOTAL INCO ME AT RS.18,70,960/-. THE RETURN WAS SELECTED FOR SCRUTINY. DURING THE CO URSE OF SCRUTINY, THE AO PERUSED THE COMPUTATION OF INCOME FILED BY THE ASSE SSEE IN WHICH HE HAS DECLARED INCOME FROM VARIOUS SOURCES AS UNDER: INCOME FROM CAPITAL GAINS: SHORT TERM CAPITAL GAIN RS.19,77,712.02 LONG TERM CAPITAL GAIN (EXEMPT) RS.1,00,922.27 INCOME FROM OTHER SOURCES RS.24,653/- GROSS TOTAL INCOME: RS.18,70,960/- 3. BY HIS LETTER DATED 04.08.2008, THE AO SOUGHT IN FORMATION/DETAILS WITH REGARD TO FULL TIME OCCUPATION/BUSINESS OF THE ASSESSEE, TOTAL TURNOVER IN PURCHASE AND SALE OF SHARES AND WHETHER THE SALE AND PURCHASE OF SHARES WERE MADE THROUGH A BROKER OR BY THE ASSESSEE HIMSE LF. THE RELEVANT ITA 1416/CHD/2010 MANMOHAN SINGH THANDI 2 INFORMATION AND DETAILS WERE FURNISHED BY THE ASSES SEE, VIDE HIS LETTER DATED 08.08.2008 TO THE AO. IN THE SAID LETTER IT W AS SUBMITTED THAT THE ASSESSEE WAS ENGAGED FULL TIME IN PURCHASE AND SALE OF SHARES AND SECURITIES THROUGH FOUR BROKERS NAMELY; CONSORTIUM SECURITIES PRIVATE LIMITED, FORTIS SECURITIES LTD., RELIGARE SECURITIE S AND INDIABULLS SECURITIES LIMITED. THE AO PERUSED THE DETAILS AND PROCEEDED T O EXAMINE THE ISSUE AS TO WHETHER SHORT TERM CAPITAL GAIN RETURNED BY THE ASSESSEE WAS IN THE NATURE OF BUSINESS INCOME U/S 28. IN THE LIGHT OF T HE PRINCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT IN G. VENKATASWAMI NAIDU & COMPANY V. CIT, 35 ITR 594 (SC), KARAM CHAND THAPAR AND BROTHERS (P) L TD, V. CIT 83 ITR 899 AND THE RULING OF THE AUTHORITY FOR ADVANCE RULINGS REPORTED IN 288 ITR 641 (AAR), THE AO HELD THAT SHORT TERM CAPITAL GAIN SHO WN BY THE ASSESSEE WAS IN THE NATURE OF BUSINESS INCOME AND ACCORDINGLY AS SESSED THE SAME U/S 28 OF THE INCOME-TAX ACT. ON APPEAL, THE LD. CIT(A) CO NFIRMED THE ORDER OF THE AO IN THIS BEHALF WITH THE FOLLOWING OBSERVATIONS: 3.6 THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ALSO THE APPELLATE PROCEEDINGS HAVE FILED A COPY OF LEDGER ACCOUNT OF SHORT TERM CAPITAL GAIN (PAGE 54). A CAREFUL ANALYS IS OF THE SORT TERM SHARE TRANSACTION OF THE APPELLANT AS APPEARING IN THE LEDGER SHOW AS UNDER: I) THAT THE APPELLANT HAS BEEN BUYING AND SELLING THE SHARE OF THE SAME COMPANY TIME AND AGAIN IN FACT 14 THERE ARE SUCH SCRIPS WHICH HAS BEEN TRANSACTED MORE THAN ONC E AND SOMETIME A GAP OF 2 TO 3 DAYS. II) OUT OF 23 SCRIPS MENTIONED IN THE TABLE MADE BY THE AO WHICH IS REPRODUCED IN THE PRECEDING PARA 15 WERE S OLD WITHIN 15 DAYS; 5 WERE SOLD BETWEEN 15 TO 20 DAYS A ND 3 WERE SOLD BETWEEN 20 TO 25 DAYS. IT IS ALSO SEEN TH AT THE APPELLANT HAS ALSO EARNED SHORT TERM CAPITAL GAIN OF RS.5 LACS APPROXIMATELY FROM THESE TRANSACTIONS ALONE. H ENCE, THERE IS NO MERIT IN APPELLANTS CONTENTION THAT TH E SHARES WHICH WERE SOLD IN A GAP OF FEW DAYS WERE THOSE FRO M WHICH THE APPELLANT HAD SUFFERED SHORT TERM CAPITAL LOSS. III) IN CERTAIN CASES, THE SAME SHARES HAVE BEEN PURCHAS ED WITHIN A SHORT SPAN OF SELLING THE SAME WHICH INDIC ATES THAT THE INTENTION OF THE APPELLANT HAS BEEN TO MAK E QUICK PROFIT BY WAY OF DIFFERENTIAL IN THE SALE OF PURCHA SE PRIE OF SHARES AND THERE WAS NO SUCH INTENTION OF HOLDING T HEM AS AN INVESTMENT E.G. 1000 SHARES MACDOWELL & CO. PURCHASED ON 23.05.2005 WERE SOLD ON 17.06.200526 ITA 1416/CHD/2010 MANMOHAN SINGH THANDI 3 DAYS HOLDING. THE SAME SHARE 1150 IS NO., WAS AGAIN PURCHASED ON 01.02.2006 AND SOLD ON 02.02.2006. IV) SOME OF THE SHARES HAVE BEEN SOLD IN SMALL LOTS I.E . THE APPELLANT SOLD SOME SHARES OF THE SAME COMPANY OUT OF HIS TOTAL PORTFOLIO OF THAT COMPANY WHILE RETAINING THE BALANCE TO BE SOLD AT A LATER DATE. IF THE INTENTIO N WAS TO MAXIMIZE THE YIELD ON INVESTMENT, THE APPELLANT WOU LD EITHER RETAIN OR SELL THE ENTIRE LOT AND NOT IN PAR TS I.E. 1250 SHARES (500+750) OF NIIT WERE PURCHASED ON 14.06.2005 AND SOLD ON 22.06.2005 AND 26.10.2005. THE ABOVE ANALYSIS OF THE TRANSACTIONS REVEALS THAT THE INTENTION OF THE APPELLANT WAS FAR FROM FOR THE PURPOSES OF INV ESTMENT AS CLAIMED BY THE APPELLANT. 3.7 FURTHER, THE APPELLANT HAS ALSO NOT ADVANCED HI S CASE BY BRINGING ON RECORD ANY EVIDENCE THAT THE SALE AND P URCHASE OF THE SHARES WAS GUIDED BY THE INTENTION OF MAXIMIZING TH E DIVIDEND THEREFROM. EVEN OTHERWISE, THE VERY FACT THAT THE S AME SHARE IS PURCHASED SOLD AND AGAIN PURCHASED AND SOLD WITHIN SHORT SPAN SHOWS THAT THE INTENTION IS TO MAKE PROFIT KEEPING IN VIE W THE CAPITAL MARKET TREND AND NOT FOR INVESTMENT. REFERENCE IS MADE TO HON'BLE SUPREME COURT OBSERVATION IN THE CASE OF CIT(CENTRAL) CALCU TTA V ASSOCIATED INDUSTRIAL DEVELOPMENT CO.P.LTD. (82 ITR 586), THAT WHETHER A PARTICULAR HOLDING OF SHARES IS BY WAY OF INVESTMEN T OR FORMS PART OF THE STOCK-IN-TRADE IS A MATTER WHICH IS WITHIN THE KNOWLEDGE OF THE ASSESSEE WHO HOLDS THE SHARES AND IT SHOULD, IN NOR MAL CIRCUMSTANCES, BE IN A POSITION TO PRODUCE EVIDENCE FROM ITS RECOR DS AS TO WHETHER IT HAS MAINTAINED ANY DISTINCTION BETWEEN THOSE SHARES WHICH ARE ITS STOCK-IN-TRADE AND THOSE WHICH ARE HELD BY WAY OF I NVESTMENT. THE APPELLANT HAS THUS NOT BROUGHT ON RECORD ANY DOCUME NT TO ADVANCE ITS CASE THAT THE SHARES WHICH WERE SOLD WERE PART OF H IS INVESTMENT PORTFOLIO AND NOT STOCK IN TRADE. 3.8 FURTHER, IT IS OBSERVED FROM THE REPLY GIVEN BY THE APPELLANT TO THE AO AS APPEARING AT PAGE NO.1 OF THE PAPER BOOK FILED DURING THE APPELLATE PROCEEDINGS THAT THE APPELLANT HIMSELF HA S STATED THAT THE ASSESSEE IS ENGAGED IN THE PURCHASE AND SALE OF MUT UAL FUNDS AND SHARES. IT HAS BEEN FURTHER STATED THAT THE AMOUNT RECEIVED FROM THE SALE OF THE SHARE IS REINVESTED IN PURCHASE OF NEW SHARES WHICH TOO SHOWS THE APPELLANT WAS ENGAGED IN THE BUSINESS OF TRADING IN SHARES FOR PROFIT BY WAY OF MARGIN IN SALE PRICE AND PURCH ASE PRICE. 3.9 AS REGARDS APPELLANTS RELIANCE ON THE HON'BLE CHANDIGARH BENCH DECISION (SUPRA), THE SAME DOES NOT HELP THE APPELL ANT AS THE FACTS OF THE TWO CASES ARE ENTIRELY DIFFERENT. IN THE CITED CASE THE APPELLANT WAS A SALARIED EMPLOYEE WORKING AS LECTURER AND TRA DING IN SHARES WAS SOUGHT TO BE EXPLAINED AS AN EXERCISE TO SHIFT FROM LOW DIVIDEND ITA 1416/CHD/2010 MANMOHAN SINGH THANDI 4 YIELDING SHARES TO HIGH DIVIDEND YIELDING ONCE. FUR THER, THE HON'BLE BENCH HAS ALSO TAKEN NOTE OF THE FACT THAT THE APPE LLANT IN THAT CASE HAD NOT BOUGHT THE SAME SHARE AGAIN AND THAT THERE WAS A MARKED INCREASE IN THE DIVIDEND EARNED BY THE APPELLANT OV ER A PERIOD OF TIME WHICH SUBSTANTIATED HER CLAIM THAT THE PURCHASE AND SALE OF SHARE WAS WITH THE INTENTION FOR INVESTMENT. IT WAS NOTED BY THE HON'BLE BENCH THAT TRADING IN SHARES BY THE APPELLANT IN THAT CAS E WAS NOT IN LINE OF REGULAR BUSINESS OF THE APPELLANT WHEREAS THE APPEL LANT IN THE CASE UNDER CONSIDERATION IS ENGAGED IN SALE AND PURCHASE OF SHARES AND MUTUAL FUND AS HIS REGULAR BUSINESS. 3.10 HOWEVER, IN THE CITED CASE THE MATTER WAS REST ORED TO THE FILE OF THE AO TO DECIDE THE ISSUE AFRESH IN LIGHT OF VARIO US FACTUAL DETAILS WHICH WERE NOT BEFORE THE HON'BLE ITAT. FURTHER, AS MENTIONED IN PARA 3.4 IN WHICH THE FINDING OF THE HON'BLE BENCH HAS BEEN DISCUSSED IN DETAIL, THE PRINCIPLES LAID DOWN BY THE HON'BLE BENCH AND ALL THE FACTUAL DETAILS OF THE APPELLANT HAVE BEEN KEPT IN VIEW WHILE DECIDING THE APPELLANTS CASE. 3.11 THUS, KEEPING IN VIEW THE VARIOUS FACTORS AS M ENTIONED ABOVE- THE DURATION OF THE SHARE HOLDING, THE REPETITIVE B UYING AND SELLING OF THE SAME SCRIP CLEARLY POINT OUT THAT THE INTENTION OF THE APPELLANT WAS TO TRADE IN THESE SCRIPS AS A TRADING ACTIVITY IN THE NATURE OF BUSINESS AND NOT TO HOLD THE SAME AS AN INVESTMENT. IT IS THEREFORE, HELD THAT THE AO WAS IN THE RIGHT IN TREATING THE I NCOME DERIVED FROM SHORT TERM SHARE TRANSACTION AS INCOME FROM BUSINES S AND MAKING AN ADDITION OF RS.19,77,712/- ON THIS ACCOUNT. THE ADD ITION SO MADE IS CONFIRMED. THIS GROUND OF APPEAL IS DISMISSED. 4. AGGRIEVED BY THE ORDER PASSED BY THE CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE THIS TRIBUNAL. IN SUPPORT OF APPEAL, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS ENGAGED ON FULL TIME BASIS IN PURCHASE AND SALE OF SHARES AND SECURITIES. ON BEIN G ASKED AS TO WHETHER THE IMPUGNED TRANSACTIONS IN SHARES AND SECURITIES HAVE BEEN SHOWN AS INVESTMENT IN THE BOOKS OF ACCOUNT, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS NOT MAINTAINING ANY BOOKS OF ACCOUNT. 5. THE LD. COUNSEL FOR THE ASSESSEE HAS FILED A PAP ER BOOK CONTAINING COPY OF REPLY DATED 13.05.2008 FILED BY THE ASSESSE E ALONGWITH; (1) ANNEXURES BEFORE THE AO; (2)COPY OF REPLY DATED 15. 09.2008 ADDRESSED TO THE ASSESSEE BY THE ACIT; (3) COPY OF THE REPLY DAT ED 19.09.2008 FILED BY THE ASSESSEE ALONGWITH COPIES OF LEDGER ACCOUNTS OF VARIOUS SHARE TRANSACTIONS, LEDGER ACCOUNT OF SHORT TERM CAPITAL GAIN AND SHARES, AND ITA 1416/CHD/2010 MANMOHAN SINGH THANDI 5 STATEMENT OF HOLDINGS FOR THE PERIOD 01.04.2005 TO 31.03.2006; (4) COPY OF REPLY DATED 21.09.2008 FILED BY THE ASSESSEE ALONGW ITH CIRCULAR NO.4/2007 DATED 15.06.2007; AND COPY OF THE ORDER PASSED BY T HIS TRIBUNAL ON 31.01.2009 IN SMT. VANDANA SEHGAL V ACIT, CHANDIGAR H, ITA NO.700/CHD/2008 FOR ASSESSMENT YEAR 2005-06. IN ADD ITION TO THE AFORESAID PAPER BOOK, THE ASSESSEE HAS ALSO FILED A COMPILATI ON OF CASE LAWS CONTAINING THE FOLLOWING DECISIONS: I) ORDER PASSED BY THIS TRIBUNAL IN INDERPAL SINGH V ACIT, CHANDIGARH, ITA NO.58/CHD/2009 ASSESSMENT YEAR 2005 -06. II) ORDER DATED 05.04.2011 PASSED BY THIS TRIBUNAL IN NAGINDAS SHETH V ACIT, ITA NO.961/MUM/2001 III) ORDER DATED 13.04.2011 PASSED BY THIS TRIBUNAL IN RAMESH BABU RAO V ACIT, ITA NO.3719/MUM/09. IV) ORDER DATED 24.11.2010 PASSED BY THIS TRIBUNAL IN DCIT V M/S SMK SHARES AND STOCK BROKING P.LTD., ITA 709/MUM/20 09 V) GOPAL PUROHIT V JCIT, 122 TTJ 87, WHICH HAS SINC E BEEN CONFIRMED BY THE HON'BLE BOMBAY HIGH COURT IN 228 C TR 582 (BOM). 6. RELYING UPON THE AFORESAID DECISIONS, THE LD. CO UNSEL FOR THE ASSESSEE SUBMITTED THAT THE MERE FACT THAT THERE WAS HIGH FR EQUENCY OF TRANSACTIONS AND THAT THE SHARES WERE SOLD WITH A VIEW TO REALIZ E PROFITS WAS NOT BY THEMSELVES SUFFICIENT TO REJECT THE CLAIM OF THE AS SESSEE. HE FURTHER SUBMITTED THAT THE CASE OF THE ASSESSEE WAS SQUAREL Y COVERED BY THE ORDER PASSED THIS TRIBUNAL IN INDERPAL SINGH V ACIT, TO W HICH ONE OF US (HON'BLE JM) IS A PARTY AND THAT WE ARE OBLIGED BY LAW TO FO LLOW THE ORDERS OF CO- ORDINATE BENCHES AND THEREFORE THE APPEAL FILED BY THE ASSESSEE SHOULD BE ALLOWED. 7. PER CONTRA, THE LD. DR STRONGLY SUPPORTED THE OR DER PASSED BY THE AO AND THE CIT(A). HE SUBMITTED THAT BOTH THE AO AND C IT(A) HAVE BROUGHT SUFFICIENT MATERIALS ON RECORD TO ESTABLISH NOT ONL Y THE HIGH FREQUENCY OF TRANSACTIONS OF PURCHASE AND SALE OF SHARES BUT ALS O THE FACT THAT THE SHARES WERE PURCHASED AND SOLD JUST TO REALIZE THE PROFITS ON THEIR SALES AND NOT WITH A VIEW TO EARN DIVIDEND. IN THIS CONNECTIO N HE REFERRED TO THE ORDER PASSED BY THIS TRIBUNAL IN HARSHAD N. MEHTA V DCIT (2010) 6 TAXMAN.COM 75 (MUM) ITAT IN WHICH IT HAS BEEN HELD THAT THE AC TIVITY OF FREQUENT BUYING AND SELLING OF SHARES OVER A SHORT SPAN OF P ERIOD HAS TO BE TREATED AS BUSINESS BEING ADVENTURE IN THE NATURE OF TRADE AND THE INCOME HAS TO ITA 1416/CHD/2010 MANMOHAN SINGH THANDI 6 BE ADDED AS BUSINESS INCOME AND NOT AS CAPITAL GAIN . REFERRING TO THE JUDGEMENT OF THE HON'BLE SUPREME COURT IN RAJA BAHA DUR VISHVESHWARA SINGH & OTHERS V. CIT, 41 ITR 685, HE SUBMITTED THA T WHEN AN OWNER OF ORDINARY INVESTMENT CHOOSES TO REALIZE A PROFIT ASS ESSABLE TO INCOME TAX, PROFIT SO REALIZED IS TO BE ASSESSED AS BUSINESS IN COME AND NOT AS CAPITAL GAIN. 8. WE HAVE HEARD BOTH THE PARTIES. IN INDERPAL SING H V. ACIT (SUPRA), THIS TRIBUNAL HAS HELD AS UNDER: 11. WE HAVE HEARD RIVAL SUBMISSIONS AND CONSIDERED THE FACTS AND MATERIALS ON RECORD. THERE IS NO DISPUTE ABOUT THE FACT THAT THE ASSESSEE IS HAVING ONLY INCOME FROM HOUSE PROPE RTY, FROM SALE OF SHARES AND INTEREST INCOME AND THE ASSESSEE IS NOT MAINTAINING BOOKS OF ACCOUNT. ALSO THERE IS NO DISP UTE THAT THE ASSESSEE HAS DEALT WITH ONLY 26 SCRIPS. THERE IS FO RCE IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE HOLDING PERIOD OF THE SHARES IS FROM 1 TO470 ODD DA YS. AS LONG AS THE ASSESSEE HAD HELD THE SHARES AS INVESTMENT F OR THE REQUISITE PERIOD AND SOLD WITHIN THE STATUTORY PERI OD MENTIONED IN THE ACT TO ATTRACT SHORT TERM CAPITAL GAIN, THE SAME CANNOT BE TREATED AS BUSINESS INCOME. THE ARGUMENT OF THE DEP ARTMENT THAT THE ASSESSEE HAS BEEN INDULGED IN DAY-TODAY TR ANSACTIONS OF PURCHASE AND SALE OF SHARES DOES NOT HOLD WATER AS THE ASSESSEE IN THIS CASE HAD DEALT ONLY WITH 26 SCRIPS . HAD THE INTENTION OF THE ASSESSEE WAS TO DO BUSINESS IN SHA RES, HE WOULD HAVE MAINTAINED BOOKS OF ACCOUNT. FURTHER, WE FIND THAT THE ASSESSEE HAS BEEN PURCHASING AND SELLING SHARES TO EARN PROFIT NOT ONLY IN THIS YEAR BUT FROM THE YEAR 1976 ONWARD S. REVENUE CANNOT COMPEL ANY ASSESSEE TO HOLD THE SHARES WITHO UT SELLING EVEN IF THERE IS AN OPPORTUNITY FOR THE ASSESSEE TO MAKE A PROFIT BY SELLING THE SHARES HELD BECAUSE IT IS THE ASSESS EE WHO HAS TO DECIDE THE COURSE OF HIS ACTIVITIES AND NOT THE DEP ARTMENT. THE VARIOUS CASE LAWS RELIED UPON BY THE LEARNED CIT(AP PEALS) WERE RENDERED IN DIFFERENT CONTEXTS AND IN THE FACT OF T HIS, ASSESSEE WHO HAS BEEN INVESTING FROM 1976 IN SHARES WITH AN INTENTION TO ITA 1416/CHD/2010 MANMOHAN SINGH THANDI 7 USE HIS SKILL AND MAKE PROFIT AT APPROPRIATE TIME, CANNOT BE SAID TO HAVE BEEN TRADING IN SHARES SO AS TO TREAT THE I NCOME AS BUSINESS INCOME. THE REVENUE ALSO CANNOT COMPEL THE ASSESSEE TO HOLD THE SHARES INTACT EVEN WHEN THERE IS AN OPP ORTUNITY TO SELL AND MAKE PROFIT OUT OF THE SAME. IT IS NOT HAR D AND FAST RULE THAT THE INVESTMENT SHOULD ALWAYS BE KEPT INTACT WI THOUT REALIZING THE PROFIT. IT IS NOT THE NUMBER OF TIMES THE ASSESSEE HAS SOLD THE SHARES THAT COULD ALONE DETERMINE THE NATURE OF THE INCOME AS TO WHETHER IT IS CAPITAL GAINS OR BUSINES S INCOME. THE CIRCULAR ISSUE BY THE CBDT ITSELF (CITED SUPRA) MEN TIONS THAT NO SINGLE PRINCIPLE WOULD BE DECISIVE AND THE TOTAL EF FECT OF ALL THE PRINCIPLES SHOULD BE CONSIDERED TO DETERMINE WHETHE R THE SHARES WERE HELD BY THE ASSESSEE AS INVESTMENT OR STOCK-IN -TRADE. IN THIS VIEW OF THE MATTER, WE ARE OF THE OPINION THAT THE LOWER AUTHORITIES HAD NOT PROPERLY CONSIDERED THE FACTS A ND CIRCUMSTANCES OF THE CASE OF THE ASSESSEE IN THE LI GHT OF THE CIRCULAR AND HENCE, WE ARE HOLDING THAT RS.7,37,497 /- HAS TO BE TREATED AS SHORT TERM CAPITAL GAIN ONLY AND NOT AS BUSINESS INCOME. THUS, THIS ISSUE IS DECIDED IN FAVOUR OF TH E ASSESSEE. 9. THE CASE OF THE ASSESSEE IS COVERED IN HIS FAVOU R BY THE AFORESAID ORDER OF THIS TRIBUNAL. WE ARE OBLIGED TO FOLLOW TH E DECISIONS OF CO-ORDINATE BENCHES OF THIS TRIBUNAL SO AS TO PROVIDE CONSISTEN CY, CERTAINTY AND UNIFORMITY IN THE DECISIONS OF THIS TRIBUNAL. RESPE CTFULLY FOLLOWING THE SAID ORDER, WE ALLOW THE APPEAL FILED BY THE ASSESSEE. ORDER PRONOUNCED ON 30 TH JUNE 2011 SD/- SD/- (SUSHMA CHOWLA) (D K SRIVASTAVA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30 TH JUNE 2011 POONAM COPY TO: 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE CIT(A) 4. THE CIT 5. THE D.R, INCOME-TAX DEPARTMENT, CHANDIGARH ASSISTANT REGISTRAR, ITAT, CHANDIGARH