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2016 (6) TMI 893 - BOMBAY HIGH COURTValidity of decision of tribunal based on its earlier decision - Revenue unable to show whether appeal against the earlier decision of the tribunal has been filed or not - Capital gain computation - date of the transfer of an asset to determine LTCG or STCG - whether the Tribunal was correct in concurring with the CIT(A) that only the date of the first holding i.e. the date of acquisition of shares as stock in trade and not the subsequent period of holding as capital asset is to be accepted? - Held that:- One of the basic feature of Rule of Law is certainty of law and uniform application of law amongst all the assessees i.e. equal treatment. Thus, where the Tribunal has taken a view on a legal issue and the Revenue has in turn either accepted it or challenged it in a higher forum, then where a subsequent order of the Tribunal follows the earlier order of the Tribunal, then the assessee must be treated in the same manner in which the assessee in the earlier case has been treated. However, there could be valid reasons for the Revenue to take a different view in this case, then that taken in the earlier case, then the reasons for the same must be set out in the memo of appeal or at least before the hearing in an affidavit filed by the Officer of the Revenue before the Court. The State cannot act arbitrarily to pick and chose the orders from which appeals would be filed. In the circumstances of the present case, we are constrained to dismiss the appeal on the inference that the earlier order of the Tribunal in Bright Star Investment (2008 (7) TMI 442 - ITAT BOMBAY-H ) has been accepted by the Revenue. This for the reason that as the Officer of the Revenue has not filed any affidavit pointing out the reasons why the impugned order is being challenged in the face of no appeal in the case of Bright Star Investment (supra). Thus, we see no reason to interfere with the impugned order. Accordingly, we dismiss the appeal of revenue.
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