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2014 (8) TMI 676 - AT - Income TaxAssessment of gain on sale of shares Held that:- The entry passed in the books of account to convert stock in trade into investments is not substantiated with any document - the examination of the applicability of various tests is not required, since the assessee has clearly brought out its intention by classifying the shares as its "Stock in Trade" - the assessee is a legal person and its intention can be ascertained only through the documents, resolutions passed in Board meetings etc. - the assessee has decided to convert the stock in trade into Investments on 1.4.2005 only when it took the decision to sell the shares immediately thereafter and the purpose is very clear, i.e., to avail the benefit of exemption and concessional rate of tax - since the assessee has shown the shares as its stock in trade and further it has also declared the gains arising on sale of shares as its business profit only - the assessee has immediately sold the shares after the conversion - CIT(A) was justified in confirming the gains arising on sale of shares as the business income of the assessee by disregarding the claim of Long term Capital gain and Short term Capital gain Decided against Assessee. TDS not deducted before prescribed due date u/s 40(a)(ia) Held that:- The assessee has paid the TDS amount before the due date prescribed for filing return of income u/s 139(1) of the Act relying upon COMMISSIONER OF INCOME TAX, KOL-XI, KOL Versus VIRGIN CREATIONS [2011 (11) TMI 348 - CALCUTTA HIGH COURT] - the amendment brought out by the Finance Act 2010 in sec. 40(a)(ia) providing for non-disallowance if the TDS amount is paid before the due date prescribed for filing return of income u/s 139(1) is retrospective in nature - the order of CIT(A) is set aside and the AO is directed to delete the disallowance made u/s 40(a)(ia) of the Act Decided in favour of Assessee.
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