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2017 (10) TMI 931 - AT - Income TaxComputation of LTCG - admission of additional evidence - Held that:- When Ld. CIT(A) could have admitted the additional evidences in preceding A.Y. 2008-09 though on some other issue, the assessee would have the reason to explain that the additional evidence were necessary for disposal of the appeals and no sufficient opportunity have been given to the assessee to produce these documents at assessment stage. The above reason clearly apply to the facts and circumstances of the case. We, therefore, set aside the order of the Ld. CIT(A) and admit the additional evidence for the purpose of disposal of the appeal of assessee, with regard to computation of long term capital gains. Since these additional evidences have not been admitted by Ld. CIT(A) and A.O. has no occasion to examine the same in accordance with law, we are of the view that the entire matter of issue of long term capital gains and the claim of acquisition of indexed cost for long term capital gains, be restored to the file of the A.O. for deciding the issue afresh, in accordance with law. Appeal of assessee is allowed for statistical purposes. Income from transaction of sale of shares - Capital gain or business income - Held that:- A.O. in preceding assessment year 2008-09 has assessed the income from sale of share transaction as business income. Therefore, on rule of consistency, the A.O. should not take a different view on identical facts. The Ld. CIT(A) in detail considered this issue by considering various tests i.e., intention of the assessee at the time of purchase of shares, borrowed funds used by assessee, frequency of the transaction in assessment year under appeal and holding of the shares as stock-in-trade etc., and thus, he has come to the conclusion that transactions are in the nature of business transactions and the income as business income. The cumulative effect of the fact was thus, for treatment of income from transaction in shares, as business income.
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