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2013 (2) TMI 791 - ITAT MUMBAI

2013 (2) TMI 791 - ITAT MUMBAI - TMI - ITA No. 9144/Mum/2010 - Dated:- 27-2-2013 - SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER. Appellant by : Shri Manish J. Sheth Respondent by : Shri Om Prakash Meena ORDER PER VIVEK VARMA, JM: The appeal is filed by the assessee against the order of CIT(A)- 31, Mumbai, dated 01.11.2010, wherein, the assessee has raised the following ground: 1. On the facts and in the circumstance of the case and in law the Honorable CIT (App .....

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nd treating the same as business income and taxing the same at normal rate. 3. The facts are that the assessee a lady, is having income from house property, capital gains and other sources. With regard to stocks and shares, the assessee declared income from: LTCG at Rs.4,93,365 STCG at Rs.9,27,202 Loss on derivatives at Rs.21,069 Speculation income at Rs.12,564 4. It was also declared that the assessee had taken loan of ₹ 1,97,53,148/-. 5. In the assessment proceedings, the AO held that by .....

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the instant appeal. 8. Before us, the AR pointed out that the assessee has been following a consistent system of maintenance of books over the years. In doing so, the assessee had been declaring shares held as investments and shares held as SIT and a consequence of which, she had declared her income and losses in each of its segments. The AR also cited the case of CIT vs Gopal Purohit, reported in 336 ITR 287 (Bom), and pleaded that the case and issues being agitated in the instant appeal are s .....

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period at 11 months on bought transactions and average holding period at 13 months on sold transactions. This, according to the AR was on similar pattern as that in the immediate preceding year, i.e. assessment year 2005-06, wherein, the AO had accepted the holding pattern under section 143(3). 9. The AR also pointed out that the assessee was doing the business in exactly same manner and pattern as that of her husband, whose conduct was accepted by the same AO, and did not make any departure fr .....

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as transactions purely of jobbing without delivery). The Tribunal has correctly applied the principle of law in accepting the position that it is open to an assessee to maintain two separate port folios, one relating to investment in shares and another relating to business activities involving dealing in shares. The Tribunal held that the delivery based transactions in the present case, should be treated as those in the nature of investment transactions and the profit received there from should .....

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its judgment that the assessee has followed a consistent practice in regard to the nature of the activities, the manner of keeping records and the presentation of shares as investment at the end of the year, in all the years. The revenue submitted that a different view should be taken for the year under consideration, since the principle of res judicata is not applicable to assessment proceedings. The Tribunal correctly accepted the position, that the principle of res judicata is not attracted .....

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the Constitution of India, by the revenue. 10. The DR, on the other hand, supported the decisions of the revenue authority and submitted that the assessee had sought a loan of ₹ 1.97 crores over a turnover of ₹ 2.00 crores, which indicates source of trading, though, the shares held as investments and that the revenue authorities were correct in their action. The DR also pleaded that cases under Income Tax are year separated, and the conduct and pattern may change year to year and hen .....

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