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TMI Blog2018 (5) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... wn the investment in its books of accounts under the head investment and not under the head stock in trade, therefore, the intention of the assessee is not to trade in shares but to treat them as an investment. We note that the Department has been consistently accepting the assessee`s computation under the head ‘short term capital gain, therefore, we uphold the order of the ld. CIT(A) following the Rule of consistency. Department has been accepting the stand of the assessee, during the previous year as well as in subsequent years to disclose the income on account of sale of investments under the head ‘short term capital gain’. Moreover, the assessee`s intention is to be as an ‘Investor, as has been observed by the treatment in the bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue are that during the assessment proceedings, the Assessing Officer observed that assessee company in its Profit Loss A/c has credited an amount of ₹ 1,12,64,140/- on account of profit on sale of share. Further in its computation of income, the assessee company has claimed it as short term capital gain and paid tax at the special rate of 15%. On perusal of the audited accounts and hard copy of ITR-6 it was found by the assessing officer that the business of assessee is trading in shares. Therefore, the Assessing Officer noted that the claim of the assessee required verification and examination to the point of frequency, consistency, as well as the intention of the assessee company in making the share transactions. The intention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.We have given a careful consideration to the rival submissions and perused the materials available on record, we note that period of holding in respect of shares traded by the assessee were less than 12 months and we note that assessee s claim has been admitted by the Department under the head shortterm capital gain in subsequent Assessment Years 2012-13, 2014-15 and 2015-16, while passing the assessment ordersunder section 143(3) of the Act. In the previous year 2009-10, the assessee`s claim has been admitted by theDepartment under the head short-term capital gain , in the assessment completed under section 143(1) of the Act.We note that the ld. CIT(A) observed that the short term capital gain of the assessee for the Assessment Year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Annexure-A forming part of this order. That is, in case of both the assessments, whether it is under section 143(1) of the Act or whether it is under section 143(3) of the Act, the claim of the assessee has been accepted by the Department under the head short term capital gain . In such circumstances we are of the view that taking a different stand in the present assessment year 2010-11, would be violation of principles of consistency and the Revenue should not be permitted to take such a stand. We, therefore, of the view that the gain on sale of shares held as investments will give raise to short term capital gain and has to be assessed as such. 6 We are of the view that on the issue, whether the income in question has to be assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or. 8. We note that the Department has been consistently accepting the assessee`s computation under the head short term capital gain, therefore, we uphold the order of the ld. CIT(A) following the Rule of consistency. For that we rely on the judgment of the Hon ble Supreme Court in RadhasoamiSatsang vs. CIT 193 ITR 321 (SC), wherein the Hon`ble Supreme Court held as follows 9. We are aware of the fact that, strictly speaking, res judicata does not apply to IT 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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