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TMI Blog2010 (8) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer in treating the short term capital gain and long term capital gain as business income without considering the facts and circumstances of the case. 2. The short issue requiring our adjudication in this case is whether the income of the assessee from sale of shares is to be treated as income from business or as capital gains. Learned counsel for the assessee submits that the above issue is now covered, in favour of assessee, by Tribunal s decision in assessee s own case for assessment year 2005-06, (ITA No. 2232/Mum./2009; order dated 14th January 2010). It is pointed out that, as noted by the Assessing Officer in paragraph 4.1 of the assessment order itself, there is no change in the assessee s activity as compared to the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal, rendered in assessee s own case for assessment year 2005-06 (supra), wherein the Tribunal has, inter alia, observed as follows:- 5 We have heard the rival submissions and considered them carefully. We have also perused the relevant material on record and find that the assessee deserves to succeed in his appeal. The assessee was doing trading shares as well as investment. Both these activities were done in past and the profit on account of trading was shown as business income and profit on account of investment was shown as STCG or LTCG as the case may be. Copy of the accounts for AY 2003-04 and 2004-05 are placed on record which confirms both these transactions done by the assessee. 5.1 During the year the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also noted that it is an admitted position both by the Assessing Officer as also by the CIT(A) that the material facts of the present assessment year are the same as of the immediately preceding assessment year which has been decided in favour of the assessee by the coordinate bench. As a matter of fact, the shares sold in the current year are carried forward from the earlier year, and, vide Tribunal s order for the said year, these shares were held as investments. In this view of the matter, the sale of these shares cannot give rise to an income taxable under the head prof its and gains from business and profession ; the said income can only be taxed as capital gains . In view of these discussions, and bearing in mind entirety of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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