2017 (2) TMI 549

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.... impugned judgment and order passed by the learned Income Tax Appellate Tribunal "D" Bench, Ahmedabad (hereinafter referred to as "the learned tribunal") dated 30/03/2016 in ITA Nos.1051/Ahd/2011 for the Assessment Year 2007-08 by which the learned tribunal has dismissed the said Appeal preferred by the revenue and has confirmed the order passed by the learned CIT(A), revenue has preferred Tax Appeal No.38/2017 with the following proposed question of law; "Whether in the facts and circumstances of the case, learned ITAT has erred in law and on facts in holding that the income of the respondent assessee arising from sale of shares /mutual funds is to be treated as capital gain instead of business income? [1.2] Feeling aggrieved and dis....

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....g of shares /mutual funds etc. set aside the order passed by the Assessing Officer and allowed the claim of the assessee considering the income of Rs. 29,97,893/- as short term capital gain and Rs. 2,51,626/- as long term capital gain. Consequently, learned CIT(A) allowed the Appeal preferred by the assessee. The order passed by the learned CIT(A) was carried in Appeal by the revenue and by the impugned judgment and order, the learned tribunal has dismissed the said Appeal preferred by the revenue. [3.0] Similar order has been passed by the learned CIT(A) confirmed by the learned tribunal for the Assessment Year 2008-09. [4.0] Shri Varun Patel, learned Counsel appearing on behalf of the revenue has vehemently submitted that the lea....

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....al gain and not treated as business income, the learned CIT(A) for the Assessment Years 2007-08 and 2008-09 held that the income of the assessee arising from sale of shares /mutual funds is to be treated as capital gain instead of business income. The findings recorded by the learned CIT(A) confirmed by the learned tribunal cannot be said to be perverse and /or contrary to the evidence on record. At this stage, the observations made by the learned CIT(A) while holding that the income of the assessee arising from the sale of shares /mutual funds is to be treated as capital gain are referred to and considered in paragraph 2.2 to 2.2.3 as under; "2.2. I have considered the submissions made by the A.R. of the appellant and the observations o....