2012 (2) TMI 72

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..... the assessee had declared long term capital gain amounting to Rs.1,21,71,847/- and short term capital gain of Rs.3,13,45,855/- from purchase and sale of shares. The AO noted that the assessee dealt in shares of number of companies and transactions in purchase and sale of shares were voluminous. He, therefore, asked the assessee to explain as to why income declared as capital gain should not be treated as business income. The assessee submitted that it was an investor and had been making investment in shares since Financial Year 2000-01. The purchase of shares had been declared as investment in books of account since inception. The assessee had been following consistently the same method of showing shares as investment and income from sale .....

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..... ted the clam of the assessee that it was an investor. He, therefore, following the decision of the Tribunal in assessee's own case in assessment year 2005-06 (supra), set aside the order of AO and accepted the claim of the assessee aggrieved by which the revenue is in appeal before the Tribunal. 3. Before us, the ld. Authorised Representative for the assessee pointed that the issue was covered in favour of the assessee by the decision of the Tribunal in assessment years 2005-06 and 2006-07 in which the Tribunal on identical facts accepted the claim of the assessee that it was an investor. It was argued that following the principle of consistency, the appeal of the assessee has to be allowed. The ld. Departmental Representative on the other .....

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..... o.1159/M/2010 and appeal of the revenue was again dismissed accepting the income as capital gain. In that year the assessee had earned much larger short term capital gain of Rs.14.61 crores compared to long term capital gain of Rs.80.51 lacs. In that year also assessee had earned income from speculation gain and profit from F&O transactions, as in this year which had been declared and accepted as business income. The factual and legal position being the same, we have to follow the decision of the Tribunal (supra), in assessee's own case in earlier years. Respectfully following the same we see no infirmity in the order of CIT(A) accepting the claim of the assessee as capital gain. Order of the CIT(A) is accordingly upheld. 5. In the result, .....

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