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2018 (11) TMI 587 - AT - Income TaxGain on sale of shares - character of income - capital gain or busniss income - Held that:- When seen holistically the action of the assessee appears to resonate with the consistent position taken in past and in subsequent assessment years. While some circumstances do indicate the regularity in transactions and trapping of business, other overwhelming circumstances negate the same. Thus, benefit of doubt deserves to go to assessee. Therefore, the action of the Revenue to treat the gains arising on sale of shares (Rs.40.67 Lakhs) as business income cannot be approved as it denies the set off of loss of short term capital loss (Rs.39.27 Lakhs) arose from the similarity of transactions in the preceding assessment year. Thus, we are disposed to hold that the action of the CIT(A) in confirming the order of the AO is misplaced. We accordingly set aside the order of the CIT(A) and direct the AO to treat the income arising from delivery based transactions in shares under the heard ‘capital gains’ as claimed by the assessee.
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