TMI Blog2012 (7) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... on as investment in shares and second set of transaction investment in shares for the purpose of business - order of CIT(A) that in A.Y. 2005-06 the CIT(A) accepted the assessee’s claim and set aside the order of A.O - to maintain consistency CIT(A) has rightly set aside the order of A.O. and allowed the claim of the assessee in respect of shares for which the assessee has shown Capital Gain – In favor of assessee - ITA No.56/Agr/2011 - - - Dated:- 22-6-2012 - SHRI BHAVNESH SAINI, AND SHRI A.L. GEHLOT, JJ. Appellant by : Shri R.K. Jain, Jr. D.R. Respondent by : Shri Pankaj Garg, Advocate ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: This is an appeal filed by the Revenue against the order dated 22.11.2010 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Year 2005-06 that the transactions of sale and purchase of shares were clearly in the nature of trade and assessed the profit earned under the head income from business. The Assessing Officer followed his discussion in Assessment Year 2005-06 and assessed share trading income of the assessee under the head business and made addition of Rs.33,90,286/-. 3. The CIT(A) after considering the assesse s submission, decided the issue in favour of the assess as under :- (CIT(A) page nos.5 to 7) 3.4 I have gone through the written submissions of the Ld. AR and also perused the assessment order as well as assessment record. The AO has considered the capital gain income of Rs.76,053/- from Long Term Capital Gain (LTCG) and Rs.33,14,233/- from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the nature of trade and, therefore, he held ha the total profit earned by the appellant on the sale of shares at Rs.33,90,286/- is income from business of the assessee and not the capital gain. 3.5 Considering the discussion of the AO in the assessment order and examining with the details available in the record and also examining the submissions of the appellant presented before me by the Ld. AR, I find that nowhere the AO has brought anything on record whether on purchase and sale of shares, the appellant has taken and given the delivery of these shares or not i.e. whether these transactions are delivery based or not. Just because of frequent purchase and sale of shares, it cannot be said that these sale and purchases have been done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has correctly held that though the principal of resjudicata is not attracted since each assessment is separate in itself, there ought to be uniformity in treatment and consistency when the facts and circumstances are identical. In this case, the assessee was engaged in two different types of shares transactions. The first set of transactions involved investment in shares. The second set of transactions involved dealing in shares for the purpose of business. In this case one sale of 7,59,003 shares for Rs.5,00,12,879 as an income from short-term capital gain and sale of 3,88,797 shares for Rs.6,65,02,340/- as long term capital gain was shown. On such a high volume of share transactions, the principal laid down in this case by the Hon ble B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the case of CIT vs. Gpal Purohit (supra) that delivery based transactions are to be treated as investment transaction and profit received therefrom is to be assessed under the head capital gain and there ought to be uniformity in treatment and consistency when the facts and circumstances are identical. It has been shown by the appellant that in share investment account he is booking only those shares for which he is taking delivery on purchase and there is no change in facts and circumstances of this case compared to last year i.e. AY 2005-06. Therefore, following the decision of my predecessor for AY 2005-06 and the Hon ble Bombay High Court in the case of CIT vs. Gopal Purohit (supra) and also taking into account the facts t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in personal set of books of accounts. Ld. Authorised Representative submitted that the assessee has bifurcated investment in shares as investment and investment as trade at the time of transaction itself and accordingly accounted for in the books of account. The Ld. Authorised Representative submitted that in this way the assessee has clearly indicated the intention of the transaction. The Ld. Authorised Representative further submitted that the system of accounting has been followed by the assessee in past as well as in future also. Ld. Authorized Representative in support of his contention relied upon the judgement of Hon ble Supreme Court of India in the case of CIT vs. Sutlej Cotton Mills Supply Agency Limited, 100 ITR 706 (SC). Ld. Au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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