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2018 (5) TMI 704 - AT - Income TaxIncome from transaction of shares - busniss income or capital gain - period of holding of shares - intention and treatment in the books of accounts - Held that:- Whether the income in question has to be assessed under the head income from capital gain or income from business, the assessee should demonstrate the intention and treatment in the books of accounts, whether he holds these shares and securities as an ‘investment’ or as a ‘stock in trade’.This intention can be judged by the entry made by the assessee in his books of accounts, that is, the treatment in the books of accounts of the assessee. We note that since, the assessee has shown the investment in its books of accounts under the head investment and not under the head stock in trade, therefore, the intention of the assessee is not to trade in shares but to treat them as an investment. We note that the Department has been consistently accepting the assessee`s computation under the head ‘short term capital gain, therefore, we uphold the order of the ld. CIT(A) following the Rule of consistency. Department has been accepting the stand of the assessee, during the previous year as well as in subsequent years to disclose the income on account of sale of investments under the head ‘short term capital gain’. Moreover, the assessee`s intention is to be as an ‘Investor, as has been observed by the treatment in the books of accounts as ‘investment’. Case of RadhasoamiSatsang [1991 (11) TMI 2 - SUPREME Court] to be followed. - Decided against revenue
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