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(iii) That the shares purchased by the assessee company constituted 'Investments' and not 'Stock in trade'.

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(iv) The intention of the assessee company was to hold the shares as investments, and there being no intraday trading of shares, the income from sale of the same, wherein both the purchase and sale transactions were delivery based, thus could safely be held as 'Capital gains'.

The CIT(A) thus on the basis of his aforesaid observations, not being persuaded to subscribe to the contentions of the assessee therein confirmed the action of the A.O. and dismissed the appeal.

8. The assessee being aggrieved with order of the CIT(A) had carried the matter in appeal before us. The Ld. Authorized Representatives (for short 'A.R') for the assessee at the very outset of the hearing of the appeal therein submitted that the authorities below had gravely erred in law and facts of the case in treating the profit/gain arising in the hands of the assessee from the sale of shares which were held as investments, as business profits. The Ld. A.R reiterating the submissions made before the lower authorities, therein tried to drive home and P a g e | 15 support his contention that the income from the sale of shares had rightly been shown under head LTCG and STCG in the return of income. The Ld. A.R in order to support his contention therein submitted that the nature of the purchase and sale transactions of shares, viz. period of holding of the scrips, no intraday transactions, delivery based purchase/sale transactions etc., therein in itself substantially evidenced the fact that the shares were purchased and thereafter held by the assessee as investments, and not as stock in trade. The Ld. A.R in support of his aforesaid contention therein drew our attention to Page 35-38 of his 'Paper book' (for short 'APB'), wherein the various purchase/sale transaction of scrips carried out by the assessee during the year stands recorded. The Ld. A.R referring to the aforesaid chart therein averred that in the case of purchase/sale of shares reflected under the head STCG the period of holding ranged between 19 days to 242 days, which therein glaringly revealed that the assessee was neither carrying on any business, nor was holding the said shares as stock in trade, but rather had purchased the same with the sole intent as that of holding them as investments. The Ld. A.R in order to support his contention, therein submitted that a bare perusal of the aforesaid 'Chart' therein revealed beyond any scope of doubt that the purchase/sale transactions of the shares which were delivery based had been carried out with the intent to derive dividend income. The Ld. A.R further submitted that the sale of the scrips had been shown by the assessee in its return of income for the immediately preceding years, viz. A.Y. 2006-07 under the head 'Capital gain', and on the said basis 'Short term capital loss' of Rs.8,35,225/- was shown, which was accepted by the A.O in the assessment framed under Sec.143(3) for the said preceding year, viz. A.Y. 2006-07, and the carry forward of the said 'Short term capital loss' of Rs.8,35,225/- was allowed by the A.O. in light of a categorical observation recorded in the body of the said assessment order. Still further the Ld. A.R in support of his aforesaid contention therein drew our P a g e | 16 attention to the copy of the assessment order passed under Sec. 143(3) for A.Y. 2006.07 (Page 40-41 of APB) and the relevant extract of the 'Computation of income' for the said preceding year( Page 45-46 of 'APB') wherein the computation of the 'Short term capital loss' of Rs.8,35,225/- stood reflected. It was further submitted by the Ld. A.R that now when the assessee company had reflected the aforesaid scrips as 'Investments', and had neither shown nor treated the same as 'Stock in trade', which fact had been accepted by the department in the assessment framed under Sec. 143(3) of the assessee for A.Y. 2006-07, and the carry forward of the 'Short term capital loss' had been specifically allowed, therefore the department thereafter cannot be allowed to turn around and take a contrary view during the year under consideration, and thus in a whimsical and fanciful manner therein categorize the said scrips as 'stock in trade'. It was thus submitted by the Ld. A.R that such inconsistent approach of the department cannot be sustained in the eyes of law and thus was liable to be vacated. The ld. A.R further averred that the material fact that the assessee had purchased the aforesaid scrips from its self owned funds and not any borrowed capital, coupled with the fact that the period of holding of the respective scrips in itself glaringly revealed that the same were in the nature of investments, had been brushed aside by the A.O., who as averred by the Ld. A.R had approached the matter with a prejudiced mind and a predetermined approach, and as such cannot be sustained.