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2017 (9) TMI 1346 - AT - Income TaxTreating the STCG and LTCG as “Business Income” - nature of income - Held that:- Considering the fact, the assessee is allowed Capital Gain for AY 2007-08, on the basis of which ld. PCIT revised the assessment passed under section 143(3) rws 147 order for directing the AO to treat the Capital Gain as Business income. Further, the AO allowed Capital Gain for AY 2014-15in assessment order passed under section 143(3) dated 26.11.2016. Thus, respectfully following the decision of the coordinate bench of the Tribunal and the principle of consistency the Ground No. 2 & 3 are allowed. Addition u/s 68 - genuineness of claim - Held that:- AO instead of identifying the discrepancy in the confirmation of gifts concluded that assessee has not been able to discharge her onus. The assessee filed copy of confirmations, copy of ITR returns and the details of transaction through banking channels. We have noted that the assesses has discharged her primary onus to prove the identity, capacity and genuinity of transaction. Considering the facts that the assessee has discharged its primary onus lie upon her. The AO has not disputed the identity of the person or the capacity of the donor. The AO has not brought any material on record. Thus, this ground of appeal is allowed in favour of assessee. Denying the benefit of set off of Short Term Capital Loss (STCL) against LTCG - assessee argued that the assessee is an Investor and is entitled for setting off of loss on STCL against STCG in accordance with section 74 - Held that:- Considering the facts that we have allowed the appeal of the assessee and allowed the gain on sale of share as STCG or LTCG as the case may be instead of Business Income. Thus, the AO is directed to verify the loss and set off of the claim in accordance with law. Thus, this ground of appeal is allowed for statistical purpose. Addition on account of dividend stripping u/s 94(7) - Held that:- AO disallowed the dividend without verifying the fact. The AO made the addition only on the observation of ld PCIT. Before us, the ld. AR of the assessee has placed on record the copy of statement showing the record and date of scripts (page No. 47-49) Considering the fact that the assessee has provided the specific details of shares of M/s Kamala Dials and M/s Hemadri Chemicals before the AO. Hence, this ground of appeal is restored to the file of AO to verify the facts and pass the order in accordance with law. Needless, to say that the AO shall provide opportunity to the assessee before passing the order. In the result this ground of appeal is allowed for statistical purpose.
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