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2017 (12) TMI 1357 - HC - Income TaxCain on sale of shares - capital gain or business income - period of holding - Held that:- As referring to only 42 transactions out of 86, in respect of rest of the 44 transactions, without any examination of details and factual aspects, the Appellate Tribunal rejected the claim that it was STGC. There was no reason to treat other 44 transactions on par with 42 transactions in respect of which holding was only for 7 days. The Appellate Tribunal has noted that in the other transactions, the holding was upto 244 days. The entire data of each transaction was before the Appellate Tribunal as is clear from the chart incorporated in paragraph 5. Nothing prevented the Appellate Tribunal from looking into all the transactions and recording findings of fact. But the Appellate Tribunal has not done its duty and therefore, the finding recorded by the Appellate Tribunal in relation to the Assessment Year 2007-08 will have to be held as perverse. Now, coming to the assessee's appeal in relation to the Assessment Year 2008-09, after accepting that the formula of 30 days adopted by the CIT(A) was erroneous, the Appellate Tribunal ought to have considered the appeal on merits. The learned counsel appearing for the respondent Revenue tried to contend that the details of the sale and purchase transactions for the Assessment Year 2008-09 were not furnished to the Assessing Officer. The said submission appears to be factually incorrect as can be seen from the order of the Assessing Officer. Paragraph 4.1 of his order clearly shows that all the details were furnished as regards the transactions of share during the relevant year. Therefore, to reiterate, we find that the entire approach of the Appellate Tribunal while dealing with the cases for both the years is completely erroneous. The Appellate Tribunal has failed to perform its duty and therefore, the impugned judgment and order of the Appellate Tribunal cannot be sustained at all
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