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2014 (5) TMI 1145 - AT - Income TaxAddition made u/s 94(7) - profit earned by the assessee from the sale of shares held for a period of less than six months - short term capital gain or business income - treated by the AO as the business income - Held that:- It is observed that the profit earned by the assessee from the sale of shares held for a period of less than six months has been treated by the ld. CIT(A) as short term capital gain in the hands of the assessee and as submitted by the ld. counsel for the assessee, the department has not filed an appeal before the Tribunal against the order of ld. CIT(A) on this issue. It therefore, follows that the entire profit/loss arising to the assessee on sale of shares has been finally taxed in the hands of the assessee under the head “ capital gains” and consequently in addition/disallowance u/s 94(7) of the Act is liable to be made under the head “capital gains” as rightly claimed by the assessee and not under the head “profit and gains of the business or profession” as held by the AO and ld. CIT(A). We, therefore, set aside the impugned of the ld. CIT(A) and direct the AO to make addition/disallowance u/s 94(7) of the Act under the head “capital gains”. - Decided in favour of assessee.
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