TMI Blog2009 (4) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... in this submission and held that simply because in the earlier years income was shown under the head Capital gains , which fact was admitted by the Revenue, was not binding in the subsequent years - AO hold that the income shown by the assessee as short-term capital gain was liable to be taxed under the head Profits and gains of business or profession - CIT(A) upheld the assessment order. HELD THAT:- We hold that since in identical circumstances the Revenue authorities have accepted the profit arising from the sale of shares as short-term capital gain in the assessment made u/s 143(3), there is no reason as to why a different treatment be given in this year. It is true that res judicata is not applicable in the income-tax proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability or otherwise of set off of short-term capital loss subject to the provisions of section 94(7), after allowing a reasonable opportunity of being heard to the assessee. - R.S. SYAL AND V. DURGA RAO, JJ. Pradip N. Kapasi for the Appellant. O.P. Yadav for the Respondent. ORDER R.S. Sayal, Accountant Member. - This appeal by the assessee arises out of the order passed by the CIT(A) on 1-9-2008 in relation to the assessment year 2005-06. 2. The first ground is against the treatment of Rs. 1,49,70,251 being the share trading income as business income instead of short-term capital gain shown by the assessee. Briefly stated the facts of the case are that the assessee continued to derive income from capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead Capital gains , which fact was admitted by the Revenue, was not binding in the subsequent years. Considering these facts and the magnitude of, the transactions of purchase and sale, the Assessing Officer came to hold that the income shown by the assessee as short-term capital gain was liable to be taxed under the head "Profits and gains of business or profession". In the first appeal the learned CIT(A) upheld the assessment order. 3. We have considered the rival submissions and perused the relevant material on record. The assessee s balance sheet for the year under consideration has been placed at p. 44 of the paper book, on the perusal of which, it can be seen that the shares and other securities have been shown under the head "In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased and sold in this year are at 213 and 173 respectively as against 194 and 177 respectively for the assessment year 2004-05. The value of purchase and sale of shares in total is at Rs. 20.08 crores and Rs. 10.59 crores in this year as against Rs 8.23 crores and Rs. 5.84 crores in the immediately preceding year. It shows that the pattern in which the shares were purchased and sold in this year is almost similar to that of the preceding year. The assessment order passed under section 143(3) in relation to assessment year 2004-05 clearly depicts that the Assessing Officer has accepted the assessee s version about the profit on sale of shares as liable to be taxed as short-term capital gain and long-term capital gain respectively. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended that the facts and circumstances of the instant case are mutatis mutandis similar to those of the assessee by which the treatment to profit on sale of shares has been changed in this year due to the changes brought in by the Finance Act, 2004. The learned Authorised Representative has also relied on another order passed by the Mumbai Bench of the Tribunal in Mrs. Amita A. Kapadia v. ITO [IT Appeal No. 7054(Mum.)2007] for the same proposition. On the order dated 3-2-2009, a copy of which has been made available by the learned Authorised Representative, we find that the facts and circumstances are similar and even the assessment year is also the same i.e., assessment year 2005-06. In this case also the Department sought to chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent under section 111A have duly suffered the securities transactions tax (STT) and further the assessee has not claimed any benefit under section 88 in respect of such STT. This ground is allowed for statistical purposes. Needless to say the assessee will be allowed opportunity of hearing in the fresh proceedings. 5. The second ground is against not allowing the set off of short-term capital loss on mutual funds against the short-term capital gain on shares. The learned counsel for the assessee contended that there is no discussion in the assessment order on this point. He stated that there was a short-term capital loss of rupees two lacs seventy thousand odd which was not allowed to be set off against the short-term capital gain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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