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2013 (9) TMI 157 - AT - Income TaxShort term capital gain or business profit on sale of shares - Assessee is dealing in large volume of shares, most of the shares are bought and sold within short period – Held that:- Relying upon the judgment of Hon’ble Tribunal in the case of Gopal Purohit vs. JCIT[2009 (2) TMI 233 - ITAT BOMBAY-G], it has been held that assessee has entered into two different types of transactions, where both activities are entirely different in nature i.e. one activity is of investment in nature on the basis of delivery and second activity is purely of jobbing (without delivery) - Delivery based transaction should be treated as of the nature of investment transactions and profit therefrom should be treated as short term capital gain or long term capital gain depending upon the period of holding. Further, relying upon the judgment in the case of Janak S. Rangwalla vs. ACIT [2006 (12) TMI 261 - ITAT MUMBAI], it has held that frequency and magnitude of transaction cannot be the criteria for determining the head of income - It is an established principle that income is to be computed with regard to the transaction. The transaction in whole has to be taken into consideration and the magnitude of the transaction does not alter the nature of transaction. Though the principle of res judicata does not apply to the Income-tax proceedings as each year is an independent year of the assessment but in order to maintain consistency, it is a judicially accepted principle that same view should be adopted for the subsequent years, unless there is a material change in the facts – Decided against the Revenue.
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