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TMI Blog2018 (11) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the order of the CIT(A) dated 06.12.2013 arising in the assessment order dated 11.02.2013 passed by the Assessing Officer (AO) u/s. 143(3) of the Income Tax Act, 1961; (the Act) concerning assessment year 2010-11. 4. The grounds of appeal raised by assessee reads as under: "1. In view of the facts and circumstances of the case, the Ld. CIT(A) ought to have directed the Ld. A.O. to allow the SET OFF of the STCG losses of Rs. 39,27,238/- brought forward earlier year before changing the character of the STCG profit of the year under appeal and hence the appellant prays that the Ld.A.O. be directed to allow that brought forward loss and thereafter only the NET AMOUNT be shifted to the head Profits and Gains of Business and Profession." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e head 'short term capital loss' and thus carried out forward. The set off of aforesaid loss of Rs. 39.27 Lakhs carried out forward to this assessment year (AY 2010-11) is sought to be denied by such action of the AO. The learned AR submitted that either capital gains of this year should be upheld as such or alternatively the loss arising in the preceding financial year should also be treated alike and loss resulting from purchase and sale of shares in AY 2009-10 should also be treated as business loss. The learned AR also referred to ledger account pertaining to share transactions to support its contentions that the gains arising on sale of shares have been rightly treated as capital gains by the assessee. 7. The learned DR, on the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008-09 was also provided on behalf of the assessee which shows that the number of scrip is 30 and number of transactions is 346 in that year which has given rise to profits of Rs. 4.79 Lakhs which is reported under the head 'capital gains'. Thus, for similar volume, frequency and magnitude of transactions, the assessee has suffered taxation under the head 'capital gains' in the assessment years 2008-09 & 2009-10. The Revenue in AY 2010-11 in question seeks to depart from such position and has attempted to hold such activity as business activity. We do not see much rationale in such action of the Revenue. In a similarly placed situation, the action of the assessee cannot be treated differently in two different assessment years. This will bre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he action of the Revenue to treat the gains arising on sale of shares (Rs.40.67 Lakhs) as business income cannot be approved as it denies the set off of loss of short term capital loss (Rs.39.27 Lakhs) arose from the similarity of transactions in the preceding assessment year. Thus, we are disposed to hold that the action of the CIT(A) in confirming the order of the AO is misplaced. We accordingly set aside the order of the CIT(A) and direct the AO to treat the income arising from delivery based transactions in shares under the heard 'capital gains' as claimed by the assessee. We may hasten to add that the findings in this year are purely factual and will not operate as res-judicata in the succeeding assessment year. 9. In the result, appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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