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2014 (7) TMI 381 - AT - Income TaxTreatment of profit on sale of shares – Capital gain or business income – Held that:- Long term capital gain arose only from sale of two shares which were purchased during the FY 2004- 05 - the allegation of the AO that the assessee was frequently dealing in shares is factually incorrect – there was long term capital loss as well as short term capital loss and, in the order passed under Section 143(3) - Revenue cannot be permitted to accept the loss from sale of shares as short term/long term capital gain but, in the year in which there was an income, treat the same as business income - In AY 2006-07, there was a short term capital gain which was claimed to be set off by the assessee against the brought forward short term capital loss and remaining short term capital gain was offered to tax - The same was accepted in the order passed under Section 143(3) - Revenue has not been able to show how the facts of the year under consideration are different than the preceding two years so as to justify the different view taken in this year - on the ground of consistency itself, the Revenue’s appeal is liable to be dismissed apart from the facts of the case as discussed by the CIT(A), which clearly show that the assessee was investor in shares and not trader – thus, there was no justification to interfere with the order of learned CIT(A) – Decided against Revenue.
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