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2015 (7) TMI 286 - AT - Income TaxTransactions of purchase and sales of shares - Treatment of short term capital gain or business income - Held that:- It is clear that the overall holding period of the shares ranges from 4days to 4 months. The volume of purchase and sale is almost equal which shows that the intention of the assessee is not to retain the shares but disposed off at the earliest possible time. Further the assessee is having OD facility with ICICI Bank. The outstanding liability at the end of the year in the OD account is ₹ 2.59 crores. The own fund claimed by the assessee is nothing but deposit received from the tenant therefore it was not his own fund but was to be refunded to the tenant. One more important feature of the transactions is repetitive purchases and sale in the same script and also in some cases same day transactions of purchase and sales. From the details of purchase and sale shown in the investment portfolios we find that the assessee has carried out repetitive transactions of same share The Activity of repetitive purchase and sale of same script manifest the intention of the assessee to book the profit on every swing of the stock market and then again entered into the same script to re-book the profit on the next swing. Thus the assessee is running with the movement of the stock market. Therefore, the facts and circumstances of the case clearly show that assessee was doing the transactions of trading in shares. The assessee contended that the AO accepted the investment in the earlier, therefore, cannot take a different view for the year under consideration. It is pertinent to note that rule of consistency is applied only when the facts are identical and not distinguishable. In the year under consideration the assessee has carried out repetitive transactions in the same script as well as same day transactions of purchase and sale therefore, the earlier orders would not operate as res-judicata or applied as rule of consistency. Hence, we do not find any error or illegality in the impugned order of the CIT(A) confirming the income as business income - Decided against assessee.
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