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2019 (3) TMI 65 - HC - Income TaxCorrect head of income - gain arising on sale of share - Business income or Short Term Capital Gain - HELD THAT:- Tribunal had taken into account all the relevant factors for coming to a conclusion that sale of shares resulted into business income of the assessee. Tribunal noted frequency of purchase and sale of shares, quantum of sale and purchase of shares and the relevant gains besides other factors in order to come to a conclusion that the assessee had intended to engage itself in the business of buying and selling the shares. No error in the view taken by the Tribunal, since the Tribunal had noted in its Judgment all the factors in coming the conclusion, which are factual in nature, and with respect to which no perversity is demonstrated. Assessee however contended that in the later year the assessee had suffered loss in the process of selling the shares which was declared as capital loss. AO in the assessment after scrutiny accepted this declaration of the assessee and therefore the department is acting inconsistently which is not permissible. The issue of the assessee suffering loss in the subsequent year arose after the assessment in the present year was completed. If in the later year the assessee had declared a loss on capital side, we wonder whether going against such a self declaration of the assessee, the Assessing Officer had to foist upon the assessee the conclusion that the loss was a business loss. If at all, it was up to the assessee to claim it as business loss if the assessee was satisfied with the gain being taxed as business income - Decided against assessee
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