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2015 (10) TMI 2005 - AT - Income TaxGain or loss earned on sale and purchase of shares and securities - capital gain v/s busniss income - Held that:- The Tribunal noted that so far as rule of consistency was concerned, even prior to assessment year 2004-05 assessee was showing the shares as investments and that the same should have been applied in assessment year 2004-05 also, where assessee had himself changed the method of accounting in comparison to earlier year as well as in the subsequent years. This observation of the Bench is sought to be emphasized by the Ld. Representative for the assessee before us to support his plea that the orders of the Tribunal for assessment years 2005-06 and 2006-07 in assessee’s own case be disregarded and instead the position prior to assessment year 2004-05 be applied as per rule of consistency. In our considered opinion, the decision in the case of Shri Chhitubhai N Patel(2012 (12) TMI 780 - ITAT, MUMBAI) has been rendered in the background of its own facts and circumstances. In fact, the Tribunal subsequently noticed that “since there are decisions on both sides on this point, therefore, each case has to be decided on its own facts” The aforesaid observation of the Tribunal itself suggests that each case is to be decided having regard to the totality of its facts and circumstances. Therefore, in our view the decision in the case of Shri Chhitubhai N Patel(supra) relied upon does not help the assessee in the present case. We, therefore, hold that the gain/loss on purchase and sale of shares, may it be long term or short term, be assessed as business income and not as capital gain being canvassed by the assessee. - Decided against assessee.
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