JUDGMENT : K.S. Jhaveri, J. 1. The assessee has filed these appeals under section 260A of the Income-tax Act, 1961, challenging the order of the Income-tax Appellate Tribunal (hereinafter referred to as "the Tribunal") dated 30.7.2002 whereby the Tribunal has allowed the appeal of the revenue by reversing the order of the Commissioner (Appeals) and confirming the order of the Assessing Officer. 2. While admitting the appeal, this court has framed the following substantial question of law: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that all the shares sold by the assessee were held by him on business account and not on investment account?" 3. The facts of the case are that the assessee filed his return of income on 31.1.1992 disclosing total income of Rs. 1,30,686/-. The return was processed and total income of the assessee was assessed at Rs. 1,73,920/-. The Assessing Officer while making assessment has concluded that the assessee's transactions in shares are his trading (business) transactions and treated long term capital gain and short term capital gain shown by the assessee as business income. Deduction under section 48(2) of the Act was denied to the assessee. Being aggrieved, the assessee went in appeal before the Commissioner of Income-tax (Appeals) who by his order dated 5.9.1995 allowed the appeal and directed the Assessing Officer not to treat the income as income from business but to treat as long term/short term capital gain/loss and allow admissible deduction. Being aggrieved by the order of the Commissioner (Appeals), the revenue went in appeal before the Tribunal. The Tribunal passed the order as aforesaid. 4. Learned advocate Mr. Shah for the assessee has contended that the Tribunal has seriously committed error in not accepting that the investment made by the assessee is a capital investment. He has taken us through the record of the case and contended that in all the preceding years the assessee was held to be an investor of shares and in wealth-tax the shares have been held to be on investment account and in the particular year the assessee was held to be a dealer in shares and the income was treated as business income. Therefore, the Tribunal was not justified in holding that the assessee is a dealer in shares and the shares sold were stock-in-trade. Therefore, the Tribunal was not justified in holding that the assessee is a dealer in shares and the shares sold were stock-in-trade. He has relied on the decision of the Apex Court in the case of Commissioner of Income-tax v. Excel Industries Ltd., reported in (2013) 358 ITR 295 (SC) wherein paragraph No. 31 it was observed as under: "It appears from the record that in several assessment years, the Revenue accepted the order of the Tribunal in favour of the assessee and did not pursue the matter any further but in respect of some assessment years the matter was taken up in appeal before the Bombay High Court but without any success. That being so, the Revenue cannot be allowed to flip-flop on the issue and it ought let the matter rest rather than spend the taxpayers' money in pursuing litigation for the sake of it." 5. The learned counsel for the revenue Mr. Desai contended that the assessee indulged in share badla transactions and that the book value and market value of shares were rising. The assessee utilized borrowed funds in acquiring new shares. He has further contended that the book value of the shares constituted major part of the total assets of the assessee. He has further contended that the other factors to treat the gains as business income were high volume of purchase and holdings, set up and methods employed, high frequency of purchase and sales, sale proceeds being invested in shares only and diversified holdings. He has further contended that the Tribunal, while considering the matter, has observed at paragraph No. 7 of the order as under: "Firstly, the commodity with which we are concerned is shares in companies. It is a commodity which attracts equal attention, both of an investor as well as of a trader. Moreover, assessee is also a broker on the Saurashtra Kutch Stock Exchange (SKSE) and indulges in badla transactions. At the same time it does not necessarily mean that a share broker himself cannot be an investor. Hence, the nature of commodity would not be decisive factor to resolve the dispute in this case." The Tribunal has further observed in paragraph No. 14 of the order thus: "Having equipped ourselves with requisite guidance from their Lordships of various High Courts and the Supreme Court, let us now have a look at the transactions. Hence, the nature of commodity would not be decisive factor to resolve the dispute in this case." The Tribunal has further observed in paragraph No. 14 of the order thus: "Having equipped ourselves with requisite guidance from their Lordships of various High Courts and the Supreme Court, let us now have a look at the transactions. So far as short term holdings are concerned, first purchase started right from the first day of the accounting year and lasted till the last day of the accounting year. This involved, in all 38 transactions of purchases. Sales started from the very second month of the accounting year and lasted till the last day of the accounting year involving 37 transactions. Practically, all the shares that were purchased were sold within a short time except in case of Kesoram Industries where 10800 shares were sold out of 13190 shares purchased, and in case of TISCO, 8450 shares were sold out of 8600 shares. Rest all the shares were sold, the sales consideration for which amounted to Rs. 6,52,925/- and which resulted into a net gain of Rs. 1,48,601/- for the assessee. Only in one case (Grasim Industries), the holding was for 10 months, and in three cases the holding lasted for 6 to 7 months. In the remaining cases, the holding has not exceeded 4 months. In about a dozen cases, the holding has remained for less than a month. In at least half-a-dozen cases the shares have been sold either on the same day or on the next day. Even in the cases where shares are sold at a loss, some are blue chip dividend paying companies. Similarly, in asstt. Year 1992-93, though the transactions of purchase and sales are lesser in number, 14 each to be precise, the turnover is to the tune of Rs. 14,49,621/- giving a net gain of Rs. 51,348/-. The holding has ranged from zero days to 9 months. In the face of these facts, we fail to see any investment intention on the part of the assessee. How can one refute such an intention where shares have been sold within hours of acquisition or at the most within 2-4 months within the acquisition. 51,348/-. The holding has ranged from zero days to 9 months. In the face of these facts, we fail to see any investment intention on the part of the assessee. How can one refute such an intention where shares have been sold within hours of acquisition or at the most within 2-4 months within the acquisition. Can it be said that when these shares were purchased, the purpose was of investment, but circumstances changed so much within hours or months that sale was triggered and hence sale proceeds should be regarded as capital receipts. If investment was the intention, then almost all the shares that were acquired during the year would not have been disposed off before the year ended. Hardly a month or two passed away without any transaction. Otherwise, purchases have continued throughout the year and sales have also continued throughout the year. We are unable to see any investment intention." The Tribunal has, in paragraph No. 15 of the order, further observed as under: "It has been stated in one of the written submissions before the lower authorities, and it was argued before us also that assessee cannot be treated as a dealer in shares because he has neither converted his investments into stock-in-trade, nor is there such a finding by the AO. The argument is quite specious. If that was the case, then where was the need to enter into so much of exercise to gather the intention. If that was the case, then there would not have been a plethora of judgments that are before us. It was then argued that even legislature realized the need to prop up the capital market and hence reduced the holding period to a minimum of twelve months to regard it as a long term capital asset. This argument may have some force so far as those shares are concerned where shares are held for more than twelve months. But it has no force for those share which are disposed off within twelve months. In fact, a count argument can be put that the assessee was so much in the share dealing business that he did not wait even for twelve months to dispose off the shares. Thus, it strengthens our conclusion that the intention of the assessee was never that of investment. In fact, a count argument can be put that the assessee was so much in the share dealing business that he did not wait even for twelve months to dispose off the shares. Thus, it strengthens our conclusion that the intention of the assessee was never that of investment. As a sequel to this, it can be argued that at least profit arising from those shares, which are held for more than twelve months should not be treated as business profits. We are not inclined to hold so because it is not ascertainable as to exactly when the assessee started dealing in shares. At least for the years under appeal, we are of the strong view that assessee has carried on a business in shares. This conclusion is based on the intention we gathered from the nature of transactions entered into by the assessee. After all what is intention - it is a stretching or bending of mind, a determination to do a special thing or to act in a particular manner. When such is the bent of mind, it is difficult to make a different view for those sales transactions where the shares were acquired prior to the years under consideration. Even if we make such a distinction, it cannot be regarded as an intelligible distinction because of the dominant impression left on the mind after considering all the facts and circumstances. I has been argued that the assessee has been offering huge dividend income for tax. This argument would have been acceptable, had the conduct of the assessee been different than what we found in entering into the transactions. Even where the assessee deals in shares, it is not that there cannot be any dividend income. Dividend can arise on those shares which are held since 1988-89 or even earlier but are disposed off during the year. Even in case of short holdings, say, ranging from 6 to 10 months, dividend can be earned if the shares are transferred in the name of the assessee. At any rate, when the overall conduct of the assessee is that of a dealer in shares, showing dividend income in the total income has no relevance." 6. Even in case of short holdings, say, ranging from 6 to 10 months, dividend can be earned if the shares are transferred in the name of the assessee. At any rate, when the overall conduct of the assessee is that of a dealer in shares, showing dividend income in the total income has no relevance." 6. In view of above, learned counsel for the revenue has contended that the Tribunal has rightly upheld the view taken by the Assessing Officer that the assessee is a dealer in shares and treating the long term and short term capital gains as business profits of the assessee by reversing the order of the Commissioner (Appeals) who held the assessee as an investor in shares. In that view of the matter, he contended that the order of the Tribunal is not required to be disturbed. 7. We have heard learned counsel for the parties. We have also gone through the order of the Tribunal and the findings given by the Tribunal to uphold the view taken by the Assessing Officer. The transactions taken place in the year under consideration show that the assessee is indulged in purchasing and selling of shares within a short time i.e. within a period of twelve months. The assessee did not wait even for twelve months to dispose of the shares. Thus the assessee has carried on business in shares. Therefore, the intention of the assessee was not of an investment. In that view of the matter, the Tribunal has rightly held the assessee as a dealer in shares for the year under consideration. Both the appeals, therefore, fail and are dismissed. The question referred to us is answered in favour of the revenue and against the assessee.