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2016 (4) TMI 737 - AT - Income TaxShare transaction - Short term capital gains or business income - nature of transaction - Held that:- The principles of consistency has to be followed in the tax matters unless Revenue is able to demonstrate that there is a marked deviation in facts situation as existing in the relevant assessment year vis-à-vis earlier years which the revenue in the instant case is not able to demonstrate. The assessee has engaged the services of portfolio manager-Enam(copy of the agreement is also placed on record in paper book filed with the tribunal) only at the fag-end of the previous year relevant to the impugned assessment year and no shares have been sold through the portfolio managers during the previous year relevant to impugned assessment year and only purchases of shares were made by the said portfolio manager on behalf of the assessee during the impugned assessment year, thus no gains whatsoever has arisen to the assessee though the dealings with Enam during the impugned assessment year, thus the finding of CIT(A) with respect there-to by holding that the assessee has made gains while buying and selling of shares by engaging services of portfolio manager’s is to that extent erroneous vis-à-vis the facts as emerging from the records. Under these circumstances , we have no hesitation in holding that the assessee is not a trader in shares and the assessee is an investor in shares and the gain arising there-from shall be charged to tax as capital gains and not as business income as held by the AO and confirmed by the CIT(A) in their respective orders and we set aside the orders of the authorities below and holds that short term capital gain earned by the assessee shall be charged to tax as short term capital gains in the hands of the assessee as offered to tax by the assessee in the return of income filed with the Revenue. - Decided in favour of assessee
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