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Issues involved: The appeal concerns the assessability of short term capital gain arising from the sale and purchase of shares for the assessment year 2008-09.
Issue 1: The Learned CIT(A) directed to treat the Short Term Capital Gain as such and not as business income, based on previous decisions in the assessee's own case. The Ld. AR argued that the issue is now settled in favor of the assessee, as confirmed by the Hon'ble Bombay High Court, which upheld the ITAT decision that the gain on sale of shares should be assessed as short term capital gain. The AR also pointed out that for the assessment year 2010-11, the AO accepted the claim of short term capital gain by the assessee. The Ld. DR did not dispute these facts. Issue 2: The magnitude and frequency of transactions in sale and purchase of shares indicate a profit motive, suggesting an adventure in the nature of trade. The Tribunal, supported by the CIT(A) and CBDT Circular No.4-2007, found that the income from the sale of shares should be taxed as short term capital gain, not business income. The Tribunal noted that the shares were primarily the assessee's investment, shown in the balance sheet as such, and the dividend income earned further supported this characterization. The Tribunal also considered the assessee's profession as a Doctor, indicating limited time for daily share transactions. Conclusion: The Tribunal dismissed the revenue's appeal, upholding the order of the CIT(A) to treat the gain on sale of shares as short term capital gain. The decision was based on the settled position in the assessee's favor, supported by previous judicial rulings and factual considerations.
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