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2017 (6) TMI 351 - HC - Income TaxAddition u/s 68 - assessee had sold certain shares, the very purchasers were found to be bogus - Held that:- As facts recorded by the Tribunal would suggest, the shares were purchased by the assessee during the period relevant to the Assessment Year 2005-2006. The return for the said year was scrutinized by the Revenue. The Assessing Officer did not disturb the investment. It would therefore later on not be open to the Assessing Officer to make addition with the aid of Section 68 of the Act when such shares were sold on the premise that the purchasers themselves were bogus. - Decided in favour of assessee Treatment to the income earned by the assessee on sale of shares - capital gain or business income - ITAT holding the share transaction as investments - Held that:- Clause (b) of circular of the CBDT dated 29.2.2016 thereof in particular provides that in respect of listed shares and securities held for a period of more than 12 months immediately preceding the date of its transfer, if the assessee desires to treat the income arising from the transfer thereof as Capital Gain, the same shall not be put to dispute by the Assessing Officer. In other words, the Revenue would not pursue this issue if the necessary ingredients are satisfied, only rider being the stand taken by the assessee in a particular year would be followed in the subsequent years also and the assessee would not be allowed to adopt a contrary stand in such subsequent years. Tribunal took the relevant facts into consideration and referred to the circular of the CBDT dated 29.2.2016 and correctly held that the return should be taxed as capital gain, be it long term or short term, as the case may be, and not as a business income.- Decided in favour of assessee
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