9911796707
TMI Blog2012 (9) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeals are identical, these were heard together and are being disposed of by this consolidated order for the sake of convenience. 2. The grounds raised by the Revenue in all the appeals are common. However, for the sake of convenience, we reproduce grounds raised in ITA No.317(Asr)/2012 for the assessment year 2004-05 by the Revenue, as under: "1. On the facts and circumstances whether the ld. CIT(A) was right in directing the A.O. to treat the assessee as investor instead of trader when the nature of the assessee business has been mentioned as "General Trading: as per the report of the Auditor on form No.3CD. 2. On the facts and circumstances whether the ld. CIT(A) was right in directing the A.O. to treat the assessee as investor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of convenience. 5. At the time of hearing, Sh. P.N.Arora, Advocate, appearing for the assessee stated that the issues involved in the Revenue appeals have already been adjudicated and decided by this Bench in assessee's own case in ITA No.333(Asr)/2010 for the assessment year 2006-07, vide order dated 11/04/2012 in favour of the assessee and against the Revenue. He further stated that the Ld. CIT(A) has also decided the issue in favour of the assessee by following the said order of the Tribunal and requested that the appeals filed by the department may be dismissed. 6. The Ld. DR, Mr. Tarsem Lal stated that the arguments advanced by him in ITA No. 333(Asr)/2010, which has been decided on 11/04/2012 against the Revenue may be adopted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . At the same time, as per the balance sheet as on 31st March, 2006, it is evident that the assessee had valued investment at cost and declared the same as investment. Therefore, the treatment given in the books of account by the assessee is investment and not as stock-in-trade. There is no borrowings taken by the assessee and this fact has not been shown by any of the authorities below. Therefore, it cannot be said that the shares have been purchased from borrowed funds. As regards the frequency of purchase and sale of shares, there is no doubt that there are certain shares which have been purchased and sold on the same day or within next few days. As pointed out by the Ld. counsel for the assessee, Mr. Ajay Vohra, these transactions are 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he service tax, the assessee is not a broker. The assessee has purchased shares which are delivery based and made the payment and vice versa is not under dispute. Whereas the trader normally makes the purchase and sale during the day without taking delivery and settling the transactions ultimately as at the end of the day without delivery, which is not the case of the assessee. The assessee has been declaring the shares as investment since assessment year 2001-02 is a matter of record and the department has not brought on record any different facts and in the absence of any material change justifying the department to take different view from that taken in earlier proceedings. The department cannot change the stand in the subsequent year. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profit and loss account are not considered in computation of income, a minor percentage of shares are sold within a period of 30 days etc. are also identical. Dividend income is also shown consistently. The shares purchases are delivery based. As held by the Hon'ble ITAT, Amritsar in view of no material change, he department cannot change its stand, I find that the facts are identical throughout with minor changes in amounts involved and in view of this the decision of Hon'ble ITAT, Amritsar, is squarely applicable to all the assessment years in appeal before me. 6. Respectfully following the decision of the Hon'ble ITAT, in the assessee's own case in assessment year 2006-07, the assessee is held to be a investor and not a trader in sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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