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2015 (1) TMI 653 - AT - Income TaxGains from sale of shares - ‘Income From Business’ OR ‘Capital Gain’ - Held that:- The totality of facts, indicates that the intention of the assessee was making the investment, thus gains arising out of sale of shares should be assessed as capital gain and not business income as has been canvassed by the ld. CIT-DR. Admittedly, no borrowed funds were utilized for making the investment, frequency of transactions, intention of the assessee making investments main through IPOs, being best possible mode of acquiring shares at lowest price and sold the same at initial period, being the best possible opportunity to sell at the pick price, as is evident from page 67 of the paper book, wherein, we find that the assessee held the investment till the accounting period i.e. 31/03/2008 and sold the shares at prevailing price as on that date earning short term capital gain of ₹ 50,73,057, which is at the rate of 13.71% of returned income as against actual short term capital gain of ₹ 1,53,51,497/- which fetched returned income at the rate of 41.48%. It is also not worthy, the assessee retained 41% of the total sales acquired during the year and sold in subsequent years and the capital gains earned there from has been accepted as capital gains by the Assessing Officer in scrutiny assessment. So far as, manner of accounting is concerned, it has been shown as investment (page-13 of the paper book) in his financial statement and consistently followed in all the years and accepted by the Department. So far as, method of valuation is concerned, the assessee valued at “cost” and not at “cost are market price whichever is less”. Therefore, the assessee is having merit in its contention. - Decided in favour of assessee. Exemption available u/s 17(2)(vi) restricted while calculating income under the head “income from salary” - reimbursement of medical expenses - Held that:- The assessee was admitted in the hospital to carry out angioplasty (angiography). The assessee also submitted the bills of hospital in support of its claim. The expenses were first incurred by the assessee for treatment of Coronary Angiography cost in ₹ 90,090/- and claimed as medical reimbursement as per the provision of section 17(2), while computing the salary income. In view of these facts, it is allowable expenses and cannot be said to be perquisite u/s 17(2) of the Act. This ground of the assessee is allowed. - Decided in favour of assessee.
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