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TMI Blog2019 (5) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... nch has not interfered with the finding of the tribunal that the assessee was an investor and that the gain made out of shares and transaction was a long-term capital gain. What the assessee had to prove before the lower adjudication authorities was that it continued to be an investor in the subject assessment year 2006- 2007 and continued to make capital gains in the manner it did in the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. - ITA 85 OF 2012 - - - Dated:- 17-4-2019 - MR I. P. MUKERJI AND MR MD. NIZAMUDDIN, JJ. For The Petitioner : Mr. P. K. Drolia, Adv. For The Respondent : Mr. R. K. Jain, Adv. ORDER The Court : In the appeal ITA No. 314 of 2009, Commissioner of Income Tax, Central- II, Kolkata Versus Churamani Housing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding that he is an investor whereas the revenue is interested in contending that the assessee is a dealer in shares. In other words, the income earned by the assessee, according to the revenue, is a business income whereas according to the assessee, is capital gain. Now, the question whether the assessee is a trader in shares or is an investor is essentially a question of fact. That question has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005-2006. The assessee claims to be an investor. It also claims that it made a longterm capital gain out of the transaction in shares in the subject assessment year. Hence, the gain made out of the transaction is to be treated as capital gains and not business income. It is true that in respect of the assessment year 2005-2006, the Division Bench has not interfered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds to be determined. The order of the tribunal dated 20th January, 2012 is set aside in respect of this issue. The issue is remanded to the tribunal to make a fresh adjudication with reasons in accordance with law. As this appeal is pending for a long period of time, we are not asking the tribunal to remand the matter back to the lower adjudication authority. The tribunal will det ..... X X X X Extracts X X X X X X X X Extracts X X X X
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