TMI Blog2013 (2) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing in investments in shares in earlier years and reported as income from sale of shares either under the head short term capital gains or long term capital gains and this position was not disturbed by the Department. The Revenue could not file any material evidence to rebut the above findings of the Commissioner of Income Tax (Appeals). - Decided against revenue. - ITA No.1029/Mds/2011 - - - Dated:- 7-2-2013 - SHRI ABRAHAM P. GEORGE AND SHRI CHALLA NAGENDRA PRASAD, JJ. For the Appellant : Mr. TN Betgeri, JCIT For the Respondent : Mr. S. Sridhar, Advocate ORDER PER CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER : This is an appeal by the Revenue against the order of Commissioner of Income Tax (Appeals)-V, Chennai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Commissioner of Income Tax (Appeals). 5. We have heard both sides. Perused the orders of the authorities below. The Commissioner of Income Tax (Appeals), in his order has dealt with this issue elaborately and came to the conclusion that the assessee who is working as Director in a company is only an investor and not a trader. The Commissioner of Income Tax (Appeals), while holding so, observed as under :- 5. I have carefully considered the facts as well as the arguments of the learned Authorised Representative. have also given serious consideration to all the precedents relied on by the learned Authorised Representative. The main thrust of the argument is that the appellant has been only an investor all along and the transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and in these circumstances, we are of the view that, principle of consistency, though it is an exception to the principle res judicata must be applied here. It is further so because the payment of Securities Transaction Tax is mandatory i.e. whether an assessee earns the profit or not or suffers a loss and by imposition of such tax, the Legislature has not given any benefit to individual(s) entering into these transactions. Thus, in our view, in the facts and circumstances of the case, on the basis of principle of consistency alone, the action of the Revenue Authorities is liable to be quashed . Another important aspect to be considered here is that the appellant is not a share broker nor he is having a registration with any Stock Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough the order of Commissioner of Income Tax (Appeals), we find no good reason to interfere with the findings of Commissioner of Income Tax (Appeals) in holding that the assessee is only an investor and the intention of the assessee is only to invest in shares and there is no motive of trading in business activities in shares. The Commissioner of Income Tax (Appeals) also held that all the transactions are delivery based transactions and no borrowed funds were utilized for making such investments . The assessee has been dealing in investments in shares in earlier years and reported as income from sale of shares either under the head short term capital gains or long term capital gains and this position was not disturbed by the Department. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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