TMI Blog2006 (12) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Assessee is holding the shares as investment from year to year. It is the intention of the assessee which is to be seen to determine the nature of transaction conducted by the assessee. Though the investment in shares is on a large magnitude but the same shall not decide the nature of transaction. Similar transactions of sale and purchase of shares in the preceeding years have been held to be income from Capital Gains both on Long Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 1,47,15,196. 2.Without prejudice to the above and in the alternative, the appellant submits that the ld. CIT(A) legally erred in confirming the action of the Assessing Officer in treating the short-term capital gains of Rs. 1,47,15,196 as profit from share trading business. 3.On the facts and in the circumstances of the case, the ld. CIT(A) legally erred in not disposing of the additional grounds of appeal filed by the appellant on 19-10-2003. 4.On the facts and in the circumstances of the case, the ld. CIT(A) legally erred in not giving relief in respect of alternative plea of the appellant that the learned Assessing Officer ought to have applied the ratio of the appellant being held as trader in respect of the activities in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l up-to-date wherein similar transactions in sale and purchase of shares both on Long Term and Short Term basis have been categorically shown by the assessee as income from Capital Gains and accepted by the Income-tax Department. The copies of Assessment Orders ranging from assessment year 1995-96 to assessment year 1999-2000 have been filed on record and it has been brought to our notice that the assessment in some of the years have been completed under section 143(3) of the Act, wherein the total income disclosed under the head Capital Gains both on account of Short Term or Long Term has been assessed as income from Capital Gains. 5. The learned AR for the assessee pointed out that during the year under consideration the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee also drew our attention to various judicial pronouncements wherein the findings in the current year were based on the position in the earlier years. The learned DR on the other hand vehemently relying on the order of CIT(A) and the Assessing Officer stated that the mere investment shown in the books of account does not mean anything and the frequency of transaction and the conduct of the party clearly shows that he is a Trader in shares and not an Investor in shares. 6. We have heard the rival submissions and perused the records. The facts of the present case are that the assessee had earned income from Short Term Capital Gains amounting to Rs. 1,47,15,196 on sale of shares in the year under consideration, which was claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 193 ITR 321 have categorically held as under : "... Strictly speaking, res judicata does not apply to income-tax proceedings. Though, each assessment year being a unit, what was decided in one year might not apply in the following year; where a fundamental aspect permeating through different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year". The same view has been taken by the Hon ble Delhi High Court in CIT v. Neo Poly Pack (P.) Ltd. [2000] 245 ITR 492 . 7. In the facts of the present case, the assessee is holding the shares as investmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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