TMI Blog2017 (12) TMI 1357X X X X Extracts X X X X X X X X Extracts X X X X ..... Year 2008-09, after accepting that the formula of 30 days adopted by the CIT(A) was erroneous, the Appellate Tribunal ought to have considered the appeal on merits. The learned counsel appearing for the respondent Revenue tried to contend that the details of the sale and purchase transactions for the Assessment Year 2008-09 were not furnished to the Assessing Officer. The said submission appears to be factually incorrect as can be seen from the order of the Assessing Officer. Paragraph 4.1 of his order clearly shows that all the details were furnished as regards the transactions of share during the relevant year. Therefore, to reiterate, we find that the entire approach of the Appellate Tribunal while dealing with the cases for both the years is completely erroneous. The Appellate Tribunal has failed to perform its duty and therefore, the impugned judgment and order of the Appellate Tribunal cannot be sustained at all - INCOME TAX APPEAL NO.325 OF 2015 WITH INCOME TAX APPEAL NO.326 OF 2015 - - - Dated:- 8-11-2017 - A.S. OKA A.K. MENON, JJ. Mr. Nishiti Gandhi i/b. Vipul Joshi for the appellant. Mr. Arvind Pinto for the respondent. ORAL JUDGMENT (PER A.S. OKA, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the said income will have to be treated as business income of the assessee. However, as the claim of the assessee as regards STGC in the Assessment Year 2007-08 was not accepted, even the balance amount of ₹ 1,08,74,670/was ordered to be treated as business income. In the final assessment order, in paragraph 4.2, the Assessing Officer directed that as discussed in detail in the order for the Assessment Year 2007-08, the gain of ₹ 1,08,74,670/shall be treated as profit on share trading and added to the business income. The CIT(A) by judgment and order dated 3rd June, 2011 partly allowed the appeal and issued a specific direction to assess the income of ₹ 1,08,74,670/as STGC. 6. There were two appears preferred before the Appellate Tribunal. The Revenue preferred an appeal in relation to Assessment Year 200708 and the assessee preferred an appeal in relation to Assessment Year 2008-09. By the impugned judgment and order, the Appellate Tribunal allowed the appeal of the Revenue in relation to the Assessment Year 2007-08 and directed that the entire amount claimed by way of STGC should be treated as business income. As far as the appeal by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessment Year 2008-09, he pointed out that though the Appellate Tribunal in paragraph 8.1 of the impugned judgment bifurcated the portfolios by treating 30 days holding as a determinative factor. Ultimately, the Tribunal proceeded to confirm the finding of the CIT(A). Relying upon the decision of the Apex Court in the case of Commissioner of Income Tax v/s. S. P. Jain (1973) 87 ITR 370 (SC), he submitted that the fact finding exercise ought to have done by the Appellate authorities. 9. The learned counsel appearing for the respondent supported the impugned judgment and order. His submission is that in paragraph 5.1, the Appellate Tribunal has referred to the fact that in 42 sale transactions out of 85 in respect of Assessment Year 200708, the holding period was upto 7 days. He submitted that the inference drawn by the Assessing Officer as regards the Assessment Year 2007-08 cannot be faulted with. As regards the Assessment Year 2008-09, he urged that the assessee had failed to submit the details of the sale and purchase transactions of the shares, and therefore, the factual aspects pleaded by the appellant could not have been gone into. He would, therefore, submit that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the same assessee. 12. In the case of Radhasoami Satsang, in paragraph 13, the Apex Court held thus: 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. 13. In this context, we must note the finding recorded in paragraph 8 of the impugned judgment of the Appellate Tribunal. The Appellate Tribunal did not find merit in the appeal of the assessee in relation to the Assessment Year 200809 only on the basis of findings recorded for the Assessment Year 2007-08. 14. Now, coming to the year 2007-08, we have already pointed out the factual aspects, that the assessee claimed STGC of ₹ 3,44,93,842/. However, the Assessing Officer treated the entire amount as business income. In appeal, the CIT(A) interfered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is also apparently not correct because before the Assessing Officer one Shri Jayesh Sangoi, Accountant of the assessee company appeared from time to time and participated in the assessment proceedings. 16. The Appellate Tribunal has thus referred to the fact that in case of 42 out of 86 transactions during the year, holding of shares was only upto 7 days. Thus, by referring to only 42 transactions out of 86, in respect of rest of the 44 transactions, without any examination of details and factual aspects, the Appellate Tribunal rejected the claim that it was STGC. There was no reason to treat other 44 transactions on par with 42 transactions in respect of which holding was only for 7 days. The Appellate Tribunal has noted that in the other transactions, the holding was upto 244 days. The entire data of each transaction was before the Appellate Tribunal as is clear from the chart incorporated in paragraph 5. Nothing prevented the Appellate Tribunal from looking into all the transactions and recording findings of fact. But the Appellate Tribunal has not done its duty and therefore, the finding recorded by the Appellate Tribunal in relation to the Assessment Year 200708 will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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