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2016 (5) TMI 21 - HC - Income TaxIncome earned from the shares - “Short Term Capital Gains” OR “Income from Business and Profession” - Held that:- Merely because 41 shares/securities were bought and sold could not per se lead to the conclusion that the earnings therefrom were not Short Term Capital Gains but business income. The mere percentage of the investment from the available surplus funds of the Assessee could not be by itself be determinative of the issue. One important factor would be how frequently the Assessee was purchasing shares during the relevant AY. This crucial factor does not seem to have been addressed by the AO. Although Mr. Manchanda repeatedly stressed that the ITAT had gone only by the order passed by the AO for AY 2005-06 whereas the said assessment had been reopened subsequently under Section 153A of the Act, but in the considered view of the Court, independent of that fact, the finding of the ITAT that the earning of the Assessee was only a Short Term Capital Gains does not suffer from any legal infirmity - Decided against revenue
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