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2022 (10) TMI 47 - HC - Income TaxCorrect head of income - gain on sale and purchase of shares - normal business profit or short term capital gain - whether the tribunal was right in reversing the order passed by the CIT(A) holding that the gain made by the assessee on sell and purchase of shares was business profit and not short term capital gains? - HELD THAT:- In Union of India Versus Azadi Bachao Andolan [2003 (10) TMI 5 - SUPREME COURT] it was pointed out that to decide as to whether the sale of shares amounted to capital gains or business income would require examination of facts - capital investment and resale do not lose their capital nature merely because the resale was foreseen and contemplated when the investment was made and the possibility of enhanced value motivated the investment - a transaction is not necessarily in the nature of trade because the purchase was made with the intention of resale - as pointed out where the purchase of any article or of any capital investment, for instance shares is made without the intention to resell it at a profit, the resale under such changed circumstances would only be realization of capital and would not stamp the transaction with a business character. If the above legal principles are applied to the facts of the case on hand, the only irresistible conclusion is to approve the view of the CIT(A) who had considered all the relevant materials and details which were placed by the assessee. The learned tribunal had failed to note that the assessee had maintained a separate account for investment, which fact was very material to consider the nature of transactions effected by the assessee during the relevant period. Thus, for the above reasons, we are of the considered view that the learned tribunal erred in reversing the order passed by the CIT(A) - substantial questions of law are answered in favour of the assessee.
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