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2015 (2) TMI 370 - HC - Income TaxCapital gain v/s business income - share transaction - CIT(Appeals) held that the sum of ₹ 1,97,17,460/-, reported during assessment year 2007-08, constituted capital gains - ITAT remitted the case for reconsideration by AO on the assumption that additional evidence had been filed - Held that:- The record itself would show that the CIT(Appeals) painstakingly looked into the nature of transactions and apparently analysed each one of them to conclude that the income derived from sale of shares was not business income but capital gains. In arriving at this decision, the CIT(Appeals) was guided by several binding decisions, such as CIT V. Associated Industrial Development Company (P) Ltd. (1971 (9) TMI 3 - SUPREME Court), Raja Bahadur Kamakhya Narayan Singh V. CIT (1969 (9) TMI 2 - SUPREME Court) and CIT V. Holck Larsen (1986 (5) TMI 30 - SUPREME Court). In fact the order of the CIT (Appeals) with respect to analysis of the facts covers a considerable part of the order. The ITAT apparently was mistaken in its assumption that some additional evidence was led before the CIT (Appeals). In fact, the order of the CIT (Appeals), in para 2.10 clearly records that the appellant had clarified that no additional evidence was filed during the appellate proceedings. Furthermore, a comparison of the details of the share transactions in question from the AO’s order and the CIT (Appeals) order would show that there is complete identity as to the details of the transactions i.e. the name of the companies, the duration of holding, date of purchase, date of sale etc. In fact, CIT (Appeals)’s order is a more elaborate analysis of some basic material. Furthermore, it was not pointed out during the course of the hearing as to what was the additional material or evidence reiterated before the CIT (Appeals) by the assessee, which necessitated the remand. we notice that the CIT (Appeals) had recorded that 29% of the transactions reported by the assessee could be treated as short term capital gain. In these circumstances, the remand directed by the ITAT is limited to enquiry on this aspect. - Decided in favour of assessee
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