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2012 (4) TMI 660 - AT - Income TaxIncome from sale of shares - capital gain or business income - STT - Held that:- The assessee has purchased shares which are delivery based and made the payment and vice versa is not under dispute. Whereas the trader normally makes the purchase and sale during the day without taking delivery and settling the transactions ultimately as at the end of the day without delivery, which is not the case of the assessee. The assessee has been declaring the shares as investment since assessment year 2001-02 is a matter of record and the department has not brought on record any different facts and in the absence of any material change justifying the department to take different view from that taken in earlier proceedings. The department cannot change the stand in the subsequent year. In the facts and circumstances of the present case and decisions of various courts of law relied upon by both the parties, we are of the view that the assessee is a investor and cannot be termed as a trader in shares. Therefore, the AO is directed to accept the claim of the assessee.
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