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2017 (8) TMI 746 - AT - Income TaxAssessment of Business loss in Share trading as capital gains - not allowing the set off of Brought forward business losses - assessee is engaged in the business of transport and in share trading - Held that:- The assessee has declared the business results for the assessment year 2008-09 as business loss and filed the return of income, which was accepted by the department u/s 143(1) of the Act. There was a clear identification of shares held as investment and shares held as stock in trade. This fact was not disputed by the revenue. It is for the assessee to treat a particular transaction as investment or stock in trade and whether the intention of the assessee was to make the business or as investment should be established with the financial statements and the conduct of the assessee. In the balance sheet by declaring stock in trade and accounting the purchases and sales in P&L A/c the assessee declared the intention as a business transaction but not as investments. The assessee is free to make certain assets as business assets and certain assets as investments. This view is upheld in the case of NSS Investments Vs. CIT [2005 (4) TMI 45 - MADRAS High Court]. Therefore, we hold that the assessee is engaged in the business of share trading and resultant Profit or loss required to be assessed as a business income but not as capital gains. Accordingly, we set aside the order of the lower authorities and delete the addition made by the A.O. - Decided in favour of assessee.
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