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2011 (2) TMI 84 - AT - Income TaxCapital gain or Business income - The assessee is holding the shares as investment from year to year - It is the intention of the assessee which is to be seen to determine the nature of transaction conducted by the assessee - Though the investment in shares is on a large magnitude but the same shall not decide the nature of transaction - Similar transaction of sale and purchase of shares in the preceding years have been held to be income from capital gains both on Long Term and Short Term basis - The purchase of shares is same as in the preceding years and the same merits to be accepted as Short Term Capital Gains - There is no basis for treating the assessee as a trader in shares, when his intention was to hold the shares in Indian companies as an investment and not as stock-in-trade - The mere magnitude of transaction does not change the nature of transaction, which are being assessed as income from Capital Gains in the past several years – Hence, the A.O. is directed to accept the claim of short term capital gain and long term capital gain - The A.O. shall withdraw rebate allowed u/s.88E of the I.T. Act by order u/s. 154 dated 03.02.2009 so far as it relates to capital gain - The appeal of the Revenue is dismissed.
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