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2012 (5) TMI 360 - AT - Income TaxBusiness income or capital gain - appellant has purchased and sold shares to realize the profit based on share price movements. Normally, this is done by some one who is the activity of share trading - principally it does not seems to be a case of mistake because if it was really a mistake then the broker would not have given the profit to the assessee because in the reverse situation i.e. if it was a case of loss assessee would not have made payment of loss to the broker. Moreover, there is no evidence to show that the broker has accepted that it was a case of mistake by him - When these few transactions are considered with the transactions regarding sale of shares of Wyeth Ltd., which were held for almost 10 years, it becomes clear that assessee is only an investor and cannot be called a trader - transactions of sale and purchase of shares have to be assessed under the head "capital gains" only - Appeal is allowed
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