TMI Blog2016 (7) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year are different from the facts in the earlier and subsequent assessment years. Particularly the number of transactions in shares were in single or double digits in the years sought to be compared while transactions of purchase and sale of shares is of the magnitude of 346 transactions in the subject assessment year. Further differences in facts was also brought out in a chart in the impugned order on 13 parameters between the subject assessment year and the earlier and subsequent assessment years. In these circumstances the impugned order very correctly holds that the rule of consistency would not apply in the present case as there is a change in facts existing in the subject assessment year. There is no merit in the submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, whether the Income-tax Appellate Tribunal was right in holding that the appellant's intention was to trade in shares and not to hold the same as investment portfolio? 3. Brief facts: (a) The appellant is an individual engaged in the business of dealing in derivatives i.e. Futures and Options. The respondentassessee in its return of income for the A.Y. 200809 had claimed an amount of ₹ 2.17 crores as a short term capital gains on account of dealing in shares and securities. The Assessing Officer by order dated 1st November, 2010 did not accept the appellant's claim of being investor in shares. The amount of ₹ 2.17 crores was classified as income earned on trading of shares i.e. business income. 4. Being agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over ratio and capital turnover ratio is recorded in the order at 1:16 and 1:10 during the subject assessment year. On these facts, the impugned order allowed the Revenue's appeal treating the entire amount of ₹ 2.17 crores as income from trading in shares i.e. business income. 6. Being aggrieved, the appellant is in appeal before us. Mr. Hadade, the learned counsel for the appellant urges that for the earlier and subsequent assessment years the Revenue has accepted the appellant's claim of trading in shares as being an action of investment resulting in short term capital gains. Thus, invoking the decision of this Court in CIT vs. Gopal Purohit 336 ITR 287 it is submitted that consistency has to be followed and in this year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chase and sale of shares is of the magnitude of 346 transactions in the subject assessment year. Further differences in facts was also brought out in a chart in the impugned order on 13 parameters between the subject assessment year and the earlier and subsequent assessment years. In these circumstances the impugned order very correctly holds that the rule of consistency would not apply in the present case as there is a change in facts existing in the subject assessment year. In fact the decision in the case of Gopal Purohit (supra) relied upon by the appellant itself proceeds on the basis of no change in facts and circumstances in the two years. It is a settled principle of law that res judicata does not apply in tax matters for the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
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