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TMI Blog2012 (3) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... s erred in treating an amount of ₹ 84,98,807/- as business income as against short term capital gain earned by the petitioner on the sale of shares. 2) The learned CIT(A) has erred in confirming the above amount of ₹ 84,98,807/- earned by the petitioner as short term capital gain on the sale of shares as business income . 3) The order appealed against is bad in law and is against the principle of natural justice. 4) The order appealed against is based on surmises and conjectures. 2. Ground Nos. 3 4 are general in nature. So we are deciding ground Nos. 1 2 together in which the assessee has challenged the disallowance of short term capital gains to the tune of ₹ 84,98,807/-. 3. Brief background of the fact i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Anahaita Nitin Shah in ITA No. 7722/Mum/2007, A.Y. 2004-05, ITA No. 1009/Mum/2008, A.Y. 2004- 05. Contended that while reaching said findings, the authorities below have not taken into consideration the holding period of the shares in hand which ranges from minimum period as zero day to average holding time of more than 100 days. In his opinion, in such a case, it is this holding time of shares which is the crucial determining factor. Hence, he prayed that the instant grounds be accepted thereby setting aside the findings returned by the lower authorities. 6. On the other hand, learned Departmental Representative appearing from the Department submitted that the authorities below have passed the orders in accordance with law. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Now coming to ITA No. 385/Mum/2009. In this appeal, in our opinion ground No. 4 5 are general in nature. Therefore, we are hereby deciding/reproducing ground No. 1 to 3 only. The same are as under :- 1) On the facts and circumstances of the case and in law, learned CIT(A) erred in directing the Assessing Officer to treat the loss incurred on account of derivative transaction as non speculative without appreciating the fact that such transactions are non delivery based within the provisions of the section 43(5) of the I.T.Act. 2) On the facts and circumstances of the case and in law, learned CIT(A) erred in not considering that the proviso to 43(5) are mainly to cover the losses that may arise by way of holding the stocks and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer, learned CIT(A) has committed illegality thereby allowing appeal of the assessee in part. He, therefore, prayed that the said finding of learned CIT(A) be set aside. On the other hand, learned AR reverting the said argument of learned Departmental Representative submitting that the instant question has also been duly dealt with by this Bench of the ITAT Mumbai in the order dated 31.1.2012. Further reiterated that the issue in hand is squarely covered by the decision referred above. Prayed for rejection of appeal. 12. After hearing both parties, we find that the issue in hand raised by the revenue is no more res-integra. In the order dated 31.1.2012 (supra), Hon'ble Co-ordinate Bench has already held that the amendment by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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