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2018 (9) TMI 1546 - AT - Income TaxSale of shares - LTCG OR STCG - Period of holding - Disallowance u/s 10(38) - Held that:- The dates of purchase and sale of shares are not in dispute. In fact, the assessee purchased 750 shares of M/s Ganesar Ginning Mills Ltd. on 23.09.2005 which falls in the financial year 2005-06 and the same were sold by the assessee on 29.11.2006 which falls in financial year 2006-07. Therefore, it is clear that the assessee was holding the shares for more than 12 months. Hence, it has to be treated only as long term capital gains. Validity of reopening of assessment - Non-service of notice under Section 143(2)- Held that:- Even though the case was reopened and reason for reopening was supplied, the Assessing Officer was expected to serve the notice under Section 143(2) of the Act within a period of six months. As held by the Apex Court, if the notice under Section 143(2) was not issued within the prescribed time, then there will be presumption that the Assessing Officer accepted the return filed by the assessee. In this case, the assessee requested the Assessing Officer to treat the return already filed as one filed in response to the notice under Section 148 of the Act. Therefore, there is a presumption that the Assessing Officer accepted the return already filed since the notice under Section 143(2) of the Act was not served within a period of six months. Therefore, this Tribunal is unable to uphold the orders of the lower authorities. Exemption claimed in respect of sale of agricultural land - Held that:- As decided in assessee's own case [2016 (10) TMI 1231 - ITAT CHENNAI] found that the assessee is not in the business of real estate. Accordingly, orders of both the authorities below are set aside by holding that the land in question is agricultural land and the profit on such sale of land is not liable for taxation by virtue of Section 2(14)(iii) of the Act. Therefore, the addition made by the Assessing Officer is deleted. - Decided in favour of assessee
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