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2012 (11) TMI 105 - AT - Income TaxExemption u/s 10A - export of software - A.O. concluded that the required condition of Sec.10A was violated by assessee. - AO observed that claim of the assessee as not genuine and therefore, rejected the claim of the assessee. - CIT(A) allowed the claim - Held that:- On identical facts of the case in assessee’s own case for A.Y. 2002-03, Hon’ble Tribunal has allowed the appeal of the assessee & this order of the Tribunal had been duly confirmed by the Hon’ble Gujarat High Court by way of dismissing the appeal of the Revenue - as in the present case, the Revenue could not controvert by bringing any material on record that the factual position in the current year is different from that of earlier years - in favour of assessee. Short term capital gain v/s business income - share transactions -CIT(A) allowed the claim - Held that:- CIT (A) has given a finding that no borrowed capital was invested in purchase of shares, buying and selling of shares was an occasional activity of the assessee and was carried out only in the last quarter of the year, the assessee had treated the shares as its investments in its Balance Sheet in Assessment Year 2004- 05 and 2005-06, the Department had accepted the income as short term capital gains - as decided in CIT vs. Associated Industrial Development Co.(P) Ltd [1971 (9) TMI 3 - SUPREME COURT] the most important test is the volume, frequency, continuity and regularity of transactions of purchase and sale of the shares to come to any conclusion - CIT (A) here was right in holding the income from sale of shares as capital gains instead of business income - in favour of assessee.
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