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2013 (5) TMI 717 - AT - Income TaxTransaction in shares subject to STT - taxable under the head "income from business or profession" OR "capital gain" - Held that:- Respectfully following the decision of Commissioner Of Income-Tax Versus V. A. Trivedi [1987 (1) TMI 12 - BOMBAY High Court] CIT(A) was not justified in confirming the order of AO, who took the transaction as business transaction instead of treating the same as short term capital gain. CIT(A) has confirmed the order of AO by observing that the transactions are frequent transactions, however, the holding period cannot be taken into consideration because under the Act itself, it has been provided that where the holding period of shares are more than one year then the long term capital gain will be applicable and where the holding period is less than one year, then the short term capital gain will be applicable, subject to the transaction are shown under the head investment portfolio. Therefore, whether the transaction are frequent or holding period is less, they are shown under the head investment portfolio, therefore, the transaction which have been shown under the head investment portfolio and, hence, the short term capital gain or long term capital gain as the case may be, will be applicable. In view of these facts and circumstances, the grounds of the assessee for both of the years allowed and direct the AO to assess the profit under the head short term capital gain instead of under the head business profit. In favour of assessee.
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