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2015 (2) TMI 103 - ITAT MUMBAISale of shares - Short term capital gains v/s business income - assessee is an individual – non-resident Indian settled in Jeddah since more than 30 years - Held that:- Capital gain was earned only on delivery basis transactions and there was no income by way of speculation or further and options. The assessee has not only earned not only dividend income but also short term and long term capital gains in respect of investments in shares held by it since last 7-8 years. The AO has not shown any reason to deviate from the conclusions drawn in earlier year and subsequent years vis-a-vis treatment of investment shown by assessee in its audited account. The fact that assessee has earned substantial long term capital gain amounting to ₹ 30,06,635/- and also dividend income of ₹ 41,13,545/- clearly establishes intention of assessee regarding holding of shares as investment. Since intention of assessee was always to make investments and not trade, hence, the holding period and investment gone from year to year from 6 crores to 22 crores. Without any cogent material the AO has reached to the conclusion that assessee has traded in shares since he was not having any business in India, whereas the fact is that assessee is an NRI, engaged in his business at Jeddah since more than 30 years. No merit in the action of the lower authorities for treating capital gain as business income. - Decided in favour of assessee
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