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2022 (8) TMI 598 - ITAT MUMBAICorrect head of income - sale consideration received by the appellant on sale of shares - business income or capital gain - HELD THAT:- From the transactions and covenants of agreement mentioned, it clearly emanates that the business was being carried out by M/s KLIPL and assessee was simply a shareholder and not directly into the business so it can be affirmed that the transactions of assessee with LOPAREX BV was transfer of shares and not of business itself. The assessee had rightly declared income under the head Capital gains. No portion of considerations can be attributed for the purposes of sec 28(va) hence we set aside the finding of Ld. CIT(A)., attributing 5% of the consideration as income covered by sec 28(va). Exemption income u/s 10(35) on dividend income received on the units of Mutual fund - assessee also claimed short term capital loss (STCL) - whether said transactions are not hit by the provisions of sec 94(7)? - HELD THAT:- In the assessee’s case, units were purchased much before 3 months period prior to record date, hence condition prescribed in clause (a) of sec 94(7) is not satisfied hence sec 94(7) can’t be applied to the assessee’s case. A.O. has not brought any evidence on record about motive of the assessee in indulging the transaction to earn loss. It is also on record that the transactions entered into by the assessee is with the SEBI regulated mutual fund scheme of a very big and reputed asset management company. Even remotely it can’t be assumed that the intentions of the assessee are to earn the loss with the gloves in hand with a reputed AMC. We are in agreement with a finding of Ld. CIT(A) and sustained the deletions made by him. Hence this ground of appeal filed by revenue is dismissed.
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