TMI Blog2012 (11) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... had treated the shares as its investments in its Balance Sheet in Assessment Year 2004- 05 and 2005-06, the Department had accepted the income as short term capital gains - as decided in CIT vs. Associated Industrial Development Co.(P) Ltd [1971 (9) TMI 3 - SUPREME COURT] the most important test is the volume, frequency, continuity and regularity of transactions of purchase and sale of the shares to come to any conclusion - CIT (A) here was right in holding the income from sale of shares as capital gains instead of business income - in favour of assessee. - ITA No 696/Ahd/2010 - - - Dated:- 12-10-2012 - SHRI D. K. TYAGI SHRI ANIL CHATURVEDI JJ. Appellant by: Mr.T. Shankar, Sr. D.R. Respondent by: Mr. S.N.Soparkar, Sr. Advocate ORDER PER: SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. This appeal is filed by the Revenue against the order of Ld. CIT (A)- XI, Ahmedabad dated 22-12-2009 for the assessment year 2006-07. 2. The Revenue in its appeal has raised 4 grounds of appeal of which ground No.3 and 4 are general in nature and therefore not required to be adjudicated. 3. The assessee is a company carrying business of export of computer software and has earned p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . of the appellant. I have also gone through the decisions, referred to above, which are relied upon by the A.R. of the appellant and the observations of the Assessing Officer in the assessment order. While rejecting the appellant s claim u/s.10A of the Act and thereby making an addition of Rs.69,57,681/-, the Assessing Officer has not appreciated the facts of the case. Similar issue arose in the appellant s own case for Assessment Years 2001-02 and 2002-03, wherein the issue in question has already been decided by my predecessor in favour of the appellant vide his order No. CIT(A)- XI/104/05-06 dated 2-9-2005 for Assessment Year 2002-03 and No. CIT (A)-XI/212/2006-07 dated 6-3-2007 for A.Y. 2001-02. Further, the said issue has already been decided in favour of the appellant by the Hon ble ITAT C Bench, Ahmedabad in the appellant s own case for A.Y. 2002-03 vide its order ITA No.2544/AHD/2005 dated 13-11- 2009. 4.3.1. Therefore, having considered the facts and circumstances of the case and respectfully following the above decisions, I am inclined to direct the Assessing Officer to allow exemption u/s.10A of the Act as claimed by the appellant and thereby to delete the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the orders of authorities below. Admittedly, the Ld. CIT (A) had decided this issue by following the Tribunal order in the assessee s own case for the assessment year 2002-03 and this order of the Tribunal had been duly confirmed by the Hon ble Gujarat High Court by way of dismissing the appeal of the Revenue. Ld. D.R. of the Revenue could not point out any difference in the facts of the present year and hence, we do not find any reason to take a contrary view in the present year. We, therefore, decline to interfere in the order of Ld. CIT (A). The Ld. A.R. further submitted that the facts of the case are identical to that of earlier years and therefore the assessee should be allowed the benefit of deduction by following orders of ITAT of earlier years. 10. We have heard the rival submissions and perused the material on record. It is undisputed fact that on identical matter, the co-ordinate Bench of Tribunal had allowed the appeal of assessee. In the present case, the Revenue could not controvert by bringing any material on record that the factual position in the current year is different from that of earlier years. Since the facts in the current year are identical to those o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the directors and for which no help of any staff was required and no staff was employed. No other infrastructure facilities were utilized. It was further submitted that no interest borrowings were made for the investment in shares and securities. The assessee had shown the shares collection under the head of investments in the books of accounts and the profit on sale of share was shown as capital gain. The company had invested its own funds to buy the shares. On few occasions the shares were sold to earn profits. It was further submitted that only 57 transactions were carried out in the whole year and the activities had taken place only in the last quarter of the year and not throughout the year. Ld. CIT (A) after considering the submissions of the assessee allowed the appeal of the assessee by holding as under:- 6.2. As explained by the appellant, the short term gain was only Rs.4.4 lakhs, as against total income of Rs.96.9 lakhs, surplus funds were being invested in shares in A.Y. 2004-05 and 2005-06 department accepted the income as STCG; no borrowed capital was invested; buying and selling of shares was occasional activity incidental/ancillary to main business; accounti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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