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ORDER Sanjiv Khanna, J. - This appeal by the Revenue, which pertains to assessment year 2005-06, in the case of CNB Finwiz Ltd., raises the following substantial question of law:- "Whether the Income Tax Appellate Tribunal was right in holding that the income from sale of shares should not be assessed as 'business income' but as 'short-term capital gains'?" 2. The respondent-assessee, had for the assessment year 2005-06, filed original return on 30th October, 2005, declaring income of Rs.1,46,09,330/-. The assessment order records that the respondent-assessee was a share broker registered with the National Stock Exchange and Bombay Stock Exchange and engaged in business of sale and purchase of shares. The respondent-assessee had declared short-term capital gain of Rs.82,32,316/- from sale and purchase of shares. After referring to Circular No.4/2007 dated 15th June, 2007 and judgment of Supreme Court in the case of CIT v. Associated Industrial Development Co. (P.) Ltd. [1971] 82 ITR 586 and some other decisions, the Assessing Officer had held that profit from sale and purchase of shares should be treated as "income from business" as the shares were held as "stock-in-trade" and not as an "investment". However, there was no adjudication and reference to facts, except noticing that the assessee, who had no opening stock, had purchased shares for Rs.2,95,00,155/- and sold shares for Rs.2,40,11,239/-. The Assessing Officer recorded that nearly 81% of shares purchased were sold during the year in question and the respondent-assessee had not earned any dividend. The Assessing Officer has in a chart reproduced details of sale and purchase of shares subject matter of short term capital gains. The chart reads:- "Company Purchased on Sold on Period of holding Whether divided received or not NTPC 03.11.04 28.02.05 3 mth & 25 days No Dena Bank 23.02.05 10.03.2005 & 11.03.05 15 days & 16 days No SBI 01.11.04 29.03.05 4 mth & 28 days No SBI 30.11.04 & 01.12.04 30.03.05 4 months No The Assessing Officer highlighted that the period of holding was between 15 days to about 5 months. The Assessing Officer contradicted himself and accepted that dividend had been…

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