9911796707
TMI Blog2013 (6) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... business. In December, 1997, the business of the assessee was taken over by the said Company as a going concern and the assessee received Rs.56.23 Crores as consideration/compensation. This amount received by the assessee was invested by it in stages in shares of Companies quoted on the Stock Exchange and in units of Mutual Funds. The assessee also owns a Kalyanamandapam at Vijayawada from which it gets rental income by letting it out for various functions. 3. For the assessment year 2006-07, the assessee filed its return of income on 25-10-2006 declaring a loss of Rs.45,38,701/- under normal computation and loss of Rs.21,93,252/- under Sec.115JB of the Act. During the relevant year, it also claimed exemption under Sec.10 (38) on Long Term Capital Gains (for short "LTCG") of Rs.18,45,50,782/- from the sale of quoted shares and equity oriented Mutual Funds. It also had LTCG of Rs.43,65,508/- and Short Term Capital Gains (for short "STCG") of Rs.16,96,089/- which was offered for taxation. 4. The case of the assessee for assessment year 2006-07 was selected for scrutiny proceedings. The Assessing Officer issued a show cause notice dated 04.08.2008 asking the assessee to file variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shares of M/s. ITC Limited; and that since the holding of the original shares of M/s. ITC Hotels was more than a year, the capital gain arising on the sale of shares of M/s. ITC Limited would be long term in nature and therefore the claim of the assessee of LTCG of Rs.8,16,084/- is correct. 9. The respondent did not proceed further and it appeared that he was satisfied with the reply of the assessee. There was a change of incumbent and the succeeding Commissioner called upon the assessee to appear before him and orally required it to furnish further information relating to activity of acquisition and sale of shares and other related information. The assessee submitted the information sought by the respondent on 18-10-2010, 13-12-2010, 22-12-2010 and 06-1-2011. Subsequently also further information was sought which went beyond the notice dated 20-01-2010 under Sec.263 of the Act which had been issued only with regard to shares of M/s ITC Limited. 10. The respondent thereafter issued a "Revised Show Cause Notice" dated 21-02-2011 under Sec.263 of the Act raising a new issue i.e., that the appellant is an investor or trader in shares generally and also stating that on further exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under Sec.263 of the Act based on the same record before conclusion of the proceedings under Sec.263 would not amount to change of opinion and is well within the powers under Sec.263 (1) and as per the time limit provided under Sec.263 (2) of the Act; that the application of mind by the Assessing Officer and coming to a wrong conclusion is not a bar for exercising jurisdiction under Sec.263 by the Commissioner; that failure of the Assessing Officer to make an enquiry before granting a deduction would render the Assessment erroneous; that under Sec.263, the Commissioner can correct both errors of fact and of law; that the order of a Revisional Authority is not an infringement of the power of the Assessing Authority and is not a mere change of opinion; that the concept of change of opinion would not arise in the case of revision by a superior authority; that an analysis of the transactions carried out by the assessee during the year in question indicates that it is buying and selling shares in the same year frequently; that there is a correlation of buy and sell day after day of huge number of shares of the same scrip i.e. M/s Andhra Sugars Limited; similar pattern is found o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on; that merely because the assessee is registered as an NBFC with RBI would not mean that it cannot do trading activity; that the assessee is using its registration as NBFC as a camouflage for its trading activity; one of the objects in the Memorandum and Articles of Association of the assessee states " the company will raise funds to acquire or hold, sell, buy or otherwise deal in shares, debentures, bond units, obligations and other securities" and these along with its actions are all reflective of its business activity and not investment activity; that the only and sole objective of purchase and sale of shares is to derive profits and not to earn dividend therefrom; that the ratio between dividend income and profits is 2:40 which shows that the dividend income is meager compared to income from sale of Share; that it is fair to conclude that its main business is only purchase and sale of shares and Units while its ancillary activity is running of a marriage hall at Vijayawada; therefore, the income declared by the assessee under the head LTCG amounting to Rs.18,98,06,611/- and STCG amounting to Rs.20,70,510/-, together amounting to Rs.19,18,77,121/- is to be held as the income c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequences making honest tax payer to pay more than others to compensate for the loss caused by such erroneous orders; that the Assessment Order is passed on an incorrect assumption of fact/incorrect application of law/without application of mind/without making requisite enquiries and will satisfy the requirement under Sec.263; that the plea of the assessee that consistency has to be followed would not apply to matters of assessment under the Income Tax Act as each assessment year is an independent assessable distinct unit and principles of res judicata do not apply. (c) On the merits, the Tribunal held on an analysis of data relating to the purchase and sale of shares of M/s Andhra Sugars Limited by the assessee that it is buying and selling shares in the same year very frequently; that there is correlation of buying and selling day after day of huge number of shares of the same scrip and the pattern the similar for several other scrips also; similar activity is done in respect of purchase and sale of Mutual Fund Units of the same fund throughout the year; that this points to trading activity in shares and Mutual Fund Units with a view to earn profit and the intention of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears. In the present case, as the Revenue has accepted the Appellant to be an investor whose income is chargeable under the head "Capital Gains" for a number of years, the Assessment order of the Assessment year 2006-07 cannot be said to be erroneous if the same view has been accepted by the Assessing Officer, and relied on a decision in the case CIT Vs. Escort Ltd., 338 ITR 435 (Del). IV. Tribunal cannot uphold the jurisdiction of the Commissioner under Sec.263 on a ground different from what has been mentioned in the notice under Sec.263 or the order of the Commissioner under Sec.263.The Commissioner has held that the Assessing Officer has applied its mind but has come to an erroneous conclusion. The Tribunal held that the Assessment Order was passed without proper examination or enquiry or verification or objective consideration of the claim made by the Appellant and, hence, Commissioner was justified in revising the order. As the Commissioner in the order passed u/s.263 has not given this reason for exercising jurisdiction under Sec.263, the Order of the Tribunal is erroneous and relied on the decisions in the cases of CIT Vs. Jagadhari Electricity Supply and Industrial 140 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch, 2006 to sell the present holding and to repurchase the same to get High cost of the shares which would save the MAT payable by the assessee in the subsequent year. Out of the total transaction of Rs.25,97,34,057/- (including Rs.2.66 Crores on sale of Hindustan Coca Cola Beverage P. Ltd) in shares, the appellant has entered into Rs.13,58,64,244/- in the month of March itself; l) The appellant has only made use of the exemption provision under sec.10(38) and sec.115JB by carrying out transactions in the month of March, 2006 and use of a provision to get benefit has been permitted by the Supreme Court in the case of CIT Vs. Walfort shares and Stock Brokers P. Ltd., 326 ITR I (SC). m) It is incorrect to say that there has been frequency of transaction as the sales by the appellant has been from the shares acquired by the appellant in the earlier years. It is not a case of buying and selling of the shares in quick time as is apparent from the fact that the majority of the gains are long term capital gains. n) Without prejudice to the above, the appellant also submitted that the frequency of the transactions cannot be the only basis to determine whether the appellant is a trader ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pg.75(AP). iv) The ITAT being the final fact finding authority, its findings are supported by facts on record and contain elaborate consideration of each and every submission of the assessee and reasoning. Hence, no substantial question of law has been made out by the assessee as required under Sec.260A of the act and the appeals filed by the assessee are liable to be dismissed. v) It is submitted that the order of the Assessing Officer is erroneous and prejudicial as it is a case of "lack of enquiry" on the fundamental aspect of the case mentioned above and it is a case of "no view" by the Assessing Officer on the said fundamental aspect. The assessee did not plead about its tax planning to reduce the MAT liability consequent to changes brought by Finance Act 2006 with effect from 01-04-2007 before the CIT as there is no mention of the same in its reply. The assessee's submission in regard to purchase and sale of Reliance shares on a single day before the Income Tax Appellate Tribunal (ITAT) is contrary to its submissions before the CIT. vi) Day-to-day variation in portfolio of the scripts based on market trend is a clear indication of its business activity as otherwise the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or canceling the assessment and directing a fresh assessment. [Explanation. - For the removal of doubts, it is hereby declared that, for the purpose of this sub-section,- (a) An order passed (on or before or after the 1 st day of June, 1988,) by the [Assessing Officer] shall include- (i) an order of assessment made by the [Assistant Commissioner] or Deputy Commissioner) or the Income-tax Officer on the basis of the directions issued by the [Joint Commissioner] under section 144A; (ii) an order made by the [Joint Commissioner] in exercise of the powers or in the performance of the functions of an [Assessing Officer] conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorized by the Board in this behalf under section 120; (b) "Record" [shall) include, and shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the Revenue. Rampyari devi Saraogi v. CIT {1968} 67 ITR 84 (SC) and in Smt. Tara Devi Aggarwal V. CIT (1973) 88 ITR 323 (SC)". 25. In Max India Ltd. (Supra), reiterated the view in Malabar Industrial Co.Ltd. (Supra) and observed that every loss of Revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income Tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue; or wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion that the order of the Income Tax Officer was not only erroneous but was prejudicial to the interests of the Revenue. Thus, while the Income Tax Officer is not called upon to write an elaborate judgment giving detailed reasons in respect of each and every disallowance, deduction, etc., it is incumbent upon the Commissioner not to exercise his suo motu revisional powers unless supported by adequate reasons for doing so; that if a query is raised during the course of the scrutiny by the Assessing Officer, which was answered to the satisfaction of the Assessing Officer, but neither the query nor the answer were reflected in the assessment order, this would not by itself lead to the conclusion that the order of the Assessing Officer called for interference and revision. 27. In Sunbeam Auto Ltd. (Supra), the Delhi High Court held that the Assessing Officer in the assessment order is not required to give a detailed reason in respect of each and every item of deduction, etc.; that whether there was application of mind before allowing the expenditure in question has to be seen; that if there was an inquiry, even inadequate that would not by itself give occasion to the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or new versions which they present as to what should be the inference or proper inference either of the facts disclosed or the weight of the circumstance; that if this is permitted, litigation would have no end except when legal ingenuity is exhausted; that to do so is to divide one argument into two and multiply the litigation. It held that cases may be visualized where the Income Tax Officer while making an assessment examines the accounts, makes inquiries, applies his mind to the facts and circumstances of the case and determines the income either by accepting the account or by making some estimate himself; that the Commissioner, on perusal of the record, may be of the opinion that the estimate made by the Officer concerned was on the lower side and left to the Commissioner he would have estimated the income at a figure higher than the one determined by the Income Tax Officer; but that would not vest the Commissioner with power to reexamine the accounts and determine the income himself at a higher figure; there must be material available on the record called for by the Commissioner to satisfy him prima facie that the order is both erroneous and prejudicial to the interests of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eous but is not prejudicial to the Revenue or if it is not erroneous but it is prejudicial to the Revenue - recourse cannot be had to Sec.263 (1) of the Act. b) Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue: or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. c) To invoke suo motu revisional powers to reopen a concluded assessment under Sec.263, the Commissioner must give reasons; that a bare reiteration by him that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue, will not suffice; that the reasons must be such as to show that the enhancement or modification of the assessment or cancellation of the assessment or directions issued for a fresh assessment were called for, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine any other records which are available at the time of examination by him and to take into consideration even those events which arose subsequent to the order of assessment. 32. In the light of the above principles, we have to see whether the respondent has rightly exercised revisional powers under Sec.263 (1) of the Act. 33. The Assessing Officer had passed the assessment order on 16-12-2008 accepting the case of the assessee that its income has to be taxed under the head "Capital Gain" as he was satisfied with the explanation and data submitted by the assessee vide its letters dated 08-02-2008, 15-05-2008, 29-08-2008 (to his queries made vide his letter dated 22-01-2008, 17-04-2008, 04-08-2008), that it is an investment company carrying on business in shares and such investment is made for the sole purpose of deriving dividend income. The correspondence exchanged between the parties shows that the Assessing Officer raised specific queries about the business activity of the assessee and also its claim of LTCG income from quoted shares, unquoted shares and Mutual Fund Units apart from STCG from sale of shares and Mutual Fund Units. The assessee had also given details of computa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants has taken us through the said statements/list of transactions. 36. On a perusal of the list of transactions, we notice that: a) In relation to M/s.Amara Raja Battery shares, 51 transactions of purchase of the said shares took place between 05-06-2003 and 28-03-2005. They were retained by the appellant for a minimum period of 1 year extending up to a maximum period of 2 years 5 months before being sold. For example 1000 shares purchased on 05-06-2003 (first transaction) were sold on 19-04-2005; 1000 shares purchased on 26-06-2003 (17 th transaction) were sold on 08-06-2005; 500 shares purchased on 04-09-2003 (32 nd transaction) were sold on 25-01-2006; 2444 shares purchased on 19-09-2003 (42 nd transaction) were sold on 20-03-2006; 975 shares purchased on 02-03-2005 (50 th transaction) were sold on 27-03-2006. b) In relation to shares of M/s.Reliance Industries, 39 transactions of purchase of shares were done between 05-06-2002 to 27-01-2005. They were retained by the appellant for a minimum period of 1 year 2 months to 3 years 6 months before being sold. For example 200 shares purchased on 05-06-2002 (1st transaction) were sold on 22-07-2005; 1000 shares purchased on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o without considering the details of the date of purchase and sale of the other scrips. This shocks our judicial conscience. 38. Both the respondent and the Tribunal state (at Para 5.4 and Para 45 of their respective orders) that on 31.01.2006, the assessee bought 15500 shares and sold 1500 shares of M/s. Andhra Sugars Ltd. This is clearly erroneous as the assessee had in fact sold 15000 shares of the said company on that date as can be seen from the written submissions made by the assessee before the Tribunal. Also the respondent at Para 2.5 and Para 5.15(i) of his order states that the assessee sold 1,01,23,003 shares of 53 listed companies during the year, but in fact the assessee had sold only 10,23,003 shares. The figure '1' was interpolated after the figures '10' and before the figures '23003' to give a misleading impression of the volume of shares traded. Even though this error was pointed out by the assessee in the written submissions made by it to the Tribunal at Para 29, the Tribunal does not deal with it. 39. One of the reasons assigned by the respondent to base his conclusion that the assessee carried out day trading (at Para 5.15(ii) of his order) was the sole instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ains", the respondent takes the cost of the shares at the time of their purchase, but he refuses to look at the date of purchase (to decide whether they are LTCG or STCG) and holds that the purchase and sale is in the same year. This indicates a very disturbing and dishonest intention on the part of the respondent to twist the figures to justify a preconceived conclusion adverse to the assessee and we strongly deprecate it. 41. In response to the revised show cause notice of the respondent dated 21.02.2011, the petitioner filed a detailed reply on 9.3.2011 showing that shares purchased between 2002 and 2005 were sold from 2005 and before 31.3.2006. It is pertinent to note that the respondent in his show cause notice dated 20.01.2010 u/s. 263 of the Act or in the revised show cause notice dated 21.02.2011 did not at all refer to the volume of transactions in March, 2006 specifically. Therefore, the assessee had no occasion to point out to the respondent the reason for the high volume and frequency of transactions in March, 2006. For the first time in his order dated 31.03.2011 at Para 5.4, the respondent refers to the said fact. 42. The explanation given by the assessee for large ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that dividend was tax free. The use by the assessee of the provisions of S.10(33) of the Act cannot be said to be "abuse of law"; even assuming that the transaction was preplanned, there was nothing to impeach the genuineness of the transaction; that the ruling of the Supreme Court in Mc. Dowell & Co Ltd Vs. CTO (1985) 154 ITR 148(SC) was clarified in the subsequent ruling of the Supreme Court in Union of India Vs. Azadi Bachao Andolan (2003) 263 ITR 706 (SC) that a citizen is free to carry on its business within the four corners of the law and that mere tax planning, without any motive to evade taxes through colourable devices, is not frowned upon even by the judgment in Mc. Dowell (Supra). 43. In our view the said decision in Walfort shares and Stock Brokers P Ltd (Supra) squarely applies to the present case and the respondent at Para 5.14 of his order dated 31.3.2011 erred in applying the ratio in Mc.Dowell (Supra) and holding that the assessee by taking advantage of its registration as an NBFC is camouflaging its trading activity in shares and units of Mutual Funds and the Tribunal erred in confirming the same. Although in the written arguments filed before the Tribunal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tock in trade at the end of the financial year for the purpose of arriving at business income or held as investment in capital assets; g) Regulation 18 of the SEBI Regulations enjoying upon every FII to keep and maintain books of account containing true and fair accounts relating to remittance of initial corpus of buying and selling and realizing capital gains on investments and accounts of remittance to India for investment in India and realizing capital gains on investment from such remittances; h) It is possible for a tax payer to have two portfolios i.e., an investment portfolio comprising of securities which are to be treated as capital assets and a trading portfolio comprising stock in trade which are to be treated as trading assets. Where an assessee has two portfolios, the assessee may have income under both heads i.e., capital gains as well as business income; i) The Assessing Officers should keep in mind that no single principle would be decisive and the total effect of all the principles should be considered to determine whether, in a given case, the shares are held by the assessee as investment or stock in trade. 45. This Court in P.V.S. Raju (Supra), held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding tenements for the labourers of the mills as well as the alternative contentions that the managed company desired to purchase the plots on account of an award of an industrial tribunal recommending that the company should provide tenements for its labourers and held that since the appellant was in a position to influence the decision of the managed company to purchase the properties, the plots were purchased by the appellant wholly and solely with the idea of selling them at a profit to the company. The tribunal, therefore, came to the conclusion that the amount was not a capital accretion but was a gain made in an adventure in the nature of business and was therefore taxable. On a reference, the High Court confirmed the said view. On appeal, the Supreme Court confirmed the said view in the facts and circumstances of the said case. It held at Page 609-610 as follows: "As we have already observed it is impossible to evolve any formula which can be applied in determining the character of isolated transactions which come before the Courts in tax proceedings. It would besides be inexpedient to make any attempt to evolve such a rule or formula. Generally speaking, it would not be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances mentioned in any of them may help the court to draw a similar inference; but it is not a matter of merely counting the number of facts and circumstances pro and con; what is important to consider is their distinctive character. In each case, it is the total effect of all relevant factors and circumstances that determines the character of the transaction; and so, though we may attempt to derive some assistance from decisions bearing on this point, we cannot seek to deduce any rule from them and mechanically apply it to the facts before us. In this connection it would be relevant to refer to another test which is sometimes applied in determining the character of the transaction. Was the purchase made with the intention to resell it at a profit? It is often said that a transaction of purchase followed by resale can either be an investment or an adventure in the nature of trade. There is no middle course and no half-way house. This statement may be broadly true; and so some judicial decisions apply the test of the initial intention to resell in distinguishing adventures in the nature of trade from transactions of investment. Even in the application of this test distinct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it's trading activity. The fact that the assessee is monitoring the stock markets and buying at dips and selling at highs with an intention to make profit from these transactions is not conclusive of the fact that the assessee is a trader because even an investor would not buy or sell blindly and take the risk of suffering losses. The fact that the assessee has an administrative set up and incurs considerable administrative expenditure also cannot be a factor to hold that the assessee is a trader because online trading is prevalent today and there is nothing special about the assessee having a few computer terminals or staff to operate them and help it in making the investments. The fact that the assessee is making repetitive purchases and sales of the same shares is a factor in favour of holding that the assessee is an investor as the assessee has explained that this was done due to amendments by Finance Bill, 2006 w.e.f, 01.04.2006 (A.Y 2007-08) to S.10(38) and S.115JB of the Act. The conclusion of the respondent that the only and sole objective of purchase and sale of shares is to derive profits and not to earn dividend is belied by the admitted fact that the assessee had earne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by an Income Tax Officer for one assessment year cannot effect or bind his decision for another year and that generally, the doctrine of res judicata or estoppel by record does not apply to such decisions. But in Radhasoami Satsang (Supra), the Supreme Court held at page-329 as follows: "We are aware of the fact that, strictly speaking, res judicata does not apply to income-tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the 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. On these reasonings, in the absence of any material change justifying the Revenue to take a different view of the matter - and, if there was no change, it was in support of the assessee - we do not think the question should have been reopened and contrary to what had been decided by the Commissioner of Income tax in the earlier proceedings, a different and contradictory stand should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermissible in view of the decisions in Jagadhri Electricity Supply and Industrial Co. (Supra) and in Howrah Flour Mills Ltd. (Supra). 52. In Jagadhri Electricity Supply and Industrial Co. (Supra), the High Court of Punjab and Haryana held that in an appeal against an order under Sec.263 (1) passed by the Commissioner, if the assessee can satisfy the Tribunal that the grounds for the decision given in the order of the Commissioner are wrong on facts or are not tenable in law, the Tribunal has no option, but to accept the appeal and to set aside the order of the Commissioner. It held that the Tribunal cannot uphold the order of the Commissioner on any other ground which, in its opinion, was available to the Commissioner as well; that if the Tribunal is allowed to find out the grounds available to the Commissioner to pass an order under Sec.263(1), then it will amount to a sharing of the exclusive jurisdiction vested in the Commissioner which is not warranted under the Act; that it is all the more so, because the Revenue has not been given any right of appeal under the Act against an order of the Commissioner under Sec.263(1). 53. In Howrah Flour Mills Ltd., (Supra), the Calcutta Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day) as he had taken data from the demat account of the assessee; that the transaction dates recorded in that account were different from the actual dates of the transaction; in the demat account, the dates of transactions will not reflect the correct date of execution of transactions; that the data would mislead the user of the statement; that as per SEBI guidelines, where T+2(trading date + 2 days) is in force, delivery will not necessarily be effected on the day of the transaction; further, if any holidays, Saturday or Sunday come in between, demat credit will be delayed accordingly; that it is clear from the statement that there were no actual transactions of purchase/ sale on the same date; the assessee entered purchase and sale transactions on the very same day of the transactions based on the contract note of the broker; that actual delivery takes any time from 2 to 5 days; in case of sale it takes 1 to 3 days which is permitted by SEBI regulations; thus the dates of transactions either purchase or sale noted in the demat account do not reflect actual date of transaction; that all shares purchased were taken delivery and all shares sold were given delivery; and that the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the assessment years 2005-06 and 2006-07 (in view of the amendment to S.111-A brought into effect from 01.04.2005), the assessees sought to change their stand contending that they were investors in order to claim the benefit of S.111-A. It was also found as a fact that all the shares were held by the assessee for less than two months and some shares were sold even before the purchase indicating the mind of the assessee that they were not intending to hold the same as investment. On those facts it was rightly held that the assessee was only doing trading activity and was not an investor. Moreover it was not a case u/s.263 of the Act to which totally different parameters would apply. 61. We are of the view that the Assessing Officer had not only taken a possible view but in the circumstances the only view possible and therefore his order could not have been termed as erroneous or prejudicial to the revenue warranting exercise of revisional jurisdiction u/s.263 of the Act by the respondent. The respondent had no different or new material to take different view from the one taken by the Assessing Officer and the reasons given by him to reopen the assessment and sustain the revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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