Case Law Details
The assessee has shown long term capital gains and short term capital gains on buying and selling of shares and mutual funds, but, the revenue treated the same as business income based on the claim of the assessee in AY 2004-05 as trading activity of the said transactions. The only dispute between the assessee and revenue is that whether the assessee’s claim of treating the income arising out of selling and buying of shares out of the capital gains is correct or treating the said income is a trading activity as held by the revenue based on the decision in AY 2004-05 is correct.
The AO and CIT(A) have observed that the assessee himself accepted that in the AY 2004-05 is a trader on the basis of the earlier year assessee is treated as trader. The learned counsel for the assessee has submitted that the assessee has never accepted as trader in earlier year and also in the year under consideration. He submitted that the issue may go back to the AO to decide afresh. On the other hand, the learned DR has no objection to remit the issue back to the file of the AO. In view of the submissions of the both the parties, we set aside the order of the CIT(A) and restore the issue to the file of the AO to adjudicate the issue afresh in accordance with law after providing reasonable opportunity of hearing to the assessee
IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI
ITA Nos. 6252 & 6464/Mum/2009
Assessment Years: 2005- 06 & 2006- 07
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