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2016 (7) TMI 191 - HC - Income TaxTransaction of shares - business income or capital gain - whether the Income-tax Appellate Tribunal was right in holding that the appellant's intention was to trade in shares and not to hold the same as investment portfolio? - Held that:- The impugned order of the Tribunal has elaborately dealt with the contention of the appellant that as for the earlier and subsequent assessment years profits arising on account of purchase and sale of shares has been classified as short term capital gains, the same should be done in the subject Assessment years. The Tribunal on analysis of the facts noticed that the facts in the subject assessment year are different from the facts in the earlier and subsequent assessment years. Particularly the number of transactions in shares were in single or double digits in the years sought to be compared while transactions of purchase and sale of shares is of the magnitude of 346 transactions in the subject assessment year. Further differences in facts was also brought out in a chart in the impugned order on 13 parameters between the subject assessment year and the earlier and subsequent assessment years. In these circumstances the impugned order very correctly holds that the rule of consistency would not apply in the present case as there is a change in facts existing in the subject assessment year. There is no merit in the submission that reliance on the inadequate mention in the Balance Sheet is immaterial since the appellant an individual for the reason that she was carrying a business in Futures and Options. Thus the obligation on the part of the assessee to file its Balance Sheet and disclose its investments. The last submission that appeals raising an identical question i.e. classification of Income as short term capital gains or business Income have been admitted for our consideration would requires admission of this appeal is not acceptable. This for the reason that appeals are admitted keeping in context the facts which give rise to the questions which were posed for our consideration. The order passed at the stage of admission of a tax appeal, cannot be treated as precedent. Thus the view taken by the Tribunal on the facts as existing in the present case is a possible view. Appeal dismissed.
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