During the course of arguments, we have invited Mr. Suresh Kumar’s attention to Section 405 of the Indian Penal Code, 1860 and we find that prima facie, the reading of this Section together with lkp forex hyderabad explanation furnishes enough ground to bring the persons like respondent Nos.
2 to 5 to book by applying provisions of Section 405 of the Indian Penal Code to them. Business Profits: Merely holding shares for a short period will not convert capital gain into business income. This would be contrary to be legislative mandate which itself provides that investment held for less than 12 months is to be termed as short term capital gain. Besides for the earlier years the Revenue accepted the claim of short term capital gain. Thus the income has to be taxed as short term capital gain.
We are of the view that respondent holding the shares for a short period, will not convert the capital gain into business income. In the present facts it is undisputed that the respondent assessee is in the business of development of real estate projects and letting of property is not the business of the respondent assessee. In both the decisions relied upon by Mr. Supreme Court on facts found that the appellant was in the business of letting out its property on lease and earning rent therefrom. Clearly it is not so in this case. Though intangible and incorporeal, it has an existence and its situs also has to be pinned down to a particular place with reference to the owner. The situs of the principal place of business, from where the owner of such trademark exercises his right to sell specified goods, under the trademark or enforces his patent rights, which has been obtained by them as a statutory right, is the place where the goods exist.
Third Member cases is inappropriate and contrary to the scheme of the Act. We share the anguish of the learned counsel. The sequence of events, as set out above, does clearly shows inordinate delay in the special bench case being taken up. Severe strictures issued against DCIT for illegal tax recovery. DCIT directed to pay costs of Rs. 50 lakh from salary to the assessee.