TMI Blog2018 (5) TMI 1437X X X X Extracts X X X X X X X X Extracts X X X X ..... he transfer thereof as Capital Gain - then it shall be treated as capital gain - the assessee is not allowed to change his position from time to time - decided in favor of assessee - R/TAX APPEAL No. 242 of 2018 - - - Dated:- 20-3-2018 - MR. AKIL KURESHI AND MR. B.N. KARIA, JJ. For The Petitioner : Mrs Mauna M Bhatt, Advocate ORAL ORDER ( PER : HONOURABLE Mr. JUSTICE AKIL KURESHI) Revenue is in appeal against the judgment of the Income Tax Appellate Tribunal, Ahmedabad Bench dated 18th September 2017 raising the following question of law for our consideration : Whether the Appellate Tribunal is right and on facts in holding that the income shown by the assessee on sale of shares of VEOL is to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The materials on record would suggest that the shares in question were of one Vishal Exports Overseas Ltd. [ VEOL for short] which was a limited company. The assessee had been strenuously arguing that it was not possible to rig the prices of the shares through small trading. The Assessing Officer as well as the CIT (Appeals) both rejected such a contention mainly referring to the price fluctuations over a short span of time and its co-relation with pattern of the assessee's buying or selling of the shares. 6. The CBDT circular in question lays down certain directives for limiting the disputes arising out of the issue at hand. In this context, in the said circular it is noted that despite earlier directions, disputes continued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect to its intention in buying and selling shares would be accepted. He was of course not allowed to change his position from time to time. Para 4 of the circular made certain exceptions and provided as under : It is however, clarified that the above shall not apply in respect of such transactions in shares/securities where the genuineness of the transaction itself is questionable, such as bogus claims of Long Term Capital Gain/Short Term Capital Loss or any other sham transactions. 8. This exclusion clause would apply where the genuineness of transaction itself is questionable. In other words, in cases such as bogus claims of long term capital gain or short term capital loss or sham transactions, the instructions of CBDT wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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