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2017 (1) TMI 1046 - AT - Income TaxGain from sale of shares - assessed as a business income or short term capital gain/long term capital gain - Held that:- In this case, transactions were more than 150 and in that case it was observed that if delivery based transactions are available, then, profit received from such transaction is to be treated as short term capital gain or long term capital gain. Thus, taking into consideration overall facts, we are of the view that the ld.Revenue authorities below are not justified in treating the assessee as trader in the shares, therefore, we allow the first fold of grievance and set aside assessment as a business income. We direct the AO to accept the claim of the assessee, and assess this amount as a short term capital gain. Weighted deduction under section 35(2AB) - Held that:- CIT(A) has failed to adhere to conditions contemplated in section 35(2AB) of the Income Tax Act and Rule 6(7A) of the Income Tax Rules. The finding of the ld.CIT(A) that the assessee was not maintaining separate accounts is factually incorrect. As duly pleaded before the ld.CIT(A) that it has been maintaining separate ledger accounts, which was duly certified. This was for the DSIR to consider before grant of approval. DSIR has not disputed it, and therefore, granted approval. Whether after satisfying itself for grant of approval, DSIR can grant approval for specific period on the strength of some policy formulated by it? - Held that:- The Act nowhere authorizes DSIR to grant approval for specific period. The job of DSIR was not find out whether R&D activity was carried out by the assessee or not, and the expenditure were incurred or not. Respectfully following the decision in the case of Claris Life Sciences Ltd [2008 (8) TMI 579 - Gujarat High Court ], we allow this ground of appeal and direct the ld.AO to grant weighted deduction under section 35(2AB) of the Income Tax Act, 1961.
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