2013 (5) TMI 392

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....a, J.M. This appeal has been filed by the assessee, against order dated 20.12.2011, passed by the CIT (Appeals)-32, Mumbai, for the quantum of assessment, passed under Section 143(3) of the Income Tax Act, 1961 (for short "the Act") for the assessment year 2008-09. The only issue involved is treating of short term capital gain (in short "STCG") on sale of shares of Rs. 32,97,363 as a business i....

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....has not been accepted by the department in many cases. He further, after referring to various decisions, held that any income from sale of shares of Rs. 32,97,363/- to be considered as income from business. The learned CIT(A) dismissed the assessee's appeal after observing and holding as under :- "I have considered the above arguments of the Ld. AR. The AO has not discussed any factual aspects ....

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....f the assessee and the assessee is in appeal before the High Court. Hence the income of assessee from share dealing has to be assessed as business income only following the order of ITAT in appellant's own case. Further, the income from PMS also cannot be treated as capital gains in present case as the assessee's income from share has already been held to be assessable as business income by the IT....

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....unal for the assessment year 2005-06. The learned Departmental Representative admitted that the matter can go back to the AO to follow the order of the Tribunal which is in favour of the revenue. 4. After carefully considering the findings of the AO and the CIT(A) and earlier orders, we find that assessee's contention that income from sale of shares is to be treated as STCG and has not been acc....