TMI Blog2019 (9) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... or various listed Companies, it was a regular feature of the assessee to trade in shares to obtain short term gain and, therefore, the short term gain has rightly been included as business adventure and has rightly been included in the income of the assessee. It is purely a finding of fact arrived at by the Assessing Officer as well as by the Income Tax Appellate Tribunal. No substantial question of law arises in the present appeal. - Income Tax Appeal No. 54/2019 - - - Dated:- 17-9-2019 - Mr. S. C. Sharma And Mr. Virender Singh, JJ For the Petitioner : Anil Kumar Jain For the Respondent : Veena Mandlik ORDER PER : S. C. SHARMA, J :- The present appeal has been filed u/S. 260A the Income Tax Act, 1961 against the order dated 10/01/2019 passed by the Income Tax Appellate Tribunal, Indore Bench, Indore in I.T.A.No. 293/Ind/2012 for the assessment year 2008-09. Facts of the case as stated in the appeal reveal that the appellant is an Eye Surgeon and is running Centre in the name of Choudhary Eye Retina Research Centre and is an Income Tax Payee. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order dated 5/3/2012 and, therefore, the Income Tax Appellate Tribunal should not have interfered with the order passed by the Commissioner of Income Tax (Appeals). It has been argued that once the issue was already decided in favour of the appellant which was consistently accepted and followed by the Department for various assessment years, non-acceptance of the same by the impugned order is unsustainable. The appellant has filed a chart in respect of the earlier assessment years and has stated that once in his own case the findings have been arrived at by the appellate authority, a different view could not have been taken in the manner and method it has been done. Learned counsel for the petitioner has placed reliance upon the judgment delivered in the case of Commissioner of Income Tax Vs. Om Prakash Suri reported in (2012) 19 ITJ 326 (MP) ; Deepaben Amitbhai Shah Vs. Dy. Commissioner of Income Tax reported in (2017) 397 ITR 687 (Gujarat) ; Commissioner of Income Tax Vs. Gopal Purohit reported in (2011) 336 ITR 287 (Bombay); Principal Commissioner of Income Tax Vs. Hiren M. Shah reported in (2019) 413 ITR 143 (Bom) ; and a judgment delivered by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent Department has placed reliance upon the following judgments : 1. Manoj Kumar Samdaria Vs. Commissioner of Income Tax-I reported in MANU/DE/1115/2014; 2. P.V.S.Raju Vs. The Addl. Commissioner of Income Tax reported in MANU/AP/457/2011; 3. Commissioner of Income Tax (Central) Calcutta Vs. Associated Industrial Development Co. P. Ltd., reported in MANU/SC/0268/1971; 4. P. M. Mohammad Meerakhan Vs. Commissioner of Income Tax, Kerala reported in MANU/SC/0227/1969; 5. Khan Bahadur Ahmed Alladin Sons Vs. Commissioner of Income Tax, Andhra Pradesh reported in MANU/SC/0161/1967; 6. G. Venkataswami Naidu Co. Vs. The Commissioner of Income Tax reported in MANU/SC/0065/1958; 7. Municipal Corporation of City of Thane Vs. Vidyut Metallics Ltd., and ors., reported in MANU/SC/7899/2007; and, 8. Premji Bhimji Vs. Commissioner of Income Tax reported in MANU/WB/0144/1970 Heard learned counsel for the parties at length and perused the record. The undisputed facts of the case reveal that for the assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is issue of purchase and sale of shares and it was only for A.Y. 2004-05 that the case was reopened and the assessing officer therein has decided that the gain from purchase and sale of shares held for less then one year is to be taxed as business income. Therefore, we are inclined to adjudicate the issue raised before us by the Revenue purely on the basis of the following facts of the instant appeal emerging from perusal of the records:- a. Paper book page 117 reveals that the assessee sold securities worth ₹ 12,41,10,593/- and claimed deduction for purchase valuing at ₹ 11,17,26,044/- and cost of transfer at ₹ 5,27,267/-. b. In the audited profit and loss account appearing at page 50 of the paper book dated 23.05.2018, equity shares held as on 1st April, 2007 have been shown under the head opening stock along with purchase of ₹ 12,02,54,265/-, sales at ₹ 14,20,85990/- and Rajeev Choudhary ITA Nos.293/Ind/2012 C.O.No.65/Ind/2012 closing stock at ₹ 3,99,59,591/-. c. On the income side of the profit and loss account along with opening stock, purchases sales and closing stock of equity shares, income from dividend, assessee has also shown profit f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rket as frequent transactions of purchase and sale of the same script are done during the year which normally is not a practice of an investor because the investor usually invests and then wait for considerable time and the reason for such waiting is that the investor who is normally engaged in other business or profession make such investments to fetch some income without investing much time on trading such investments on regular basis. For this reason the investors invests the money in fixed deposits Public Provident funds as well as equity shares and other investments options. 18. But the situation in the case of assessee seems to be different because assessee is keeping continuous watch on the share market. He selects various scripts for regular purchase and sale and he is also engaged in the future and option market. Hundreds of transactions have been entered with the same brokers for purchase/sale. No separate demat account have been kept by the assessee relating to the alleged investment in equity shares and profit and sale from share trading and future and option. In these given facts it is hard to believe that such gain from such magnitude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Income Tax (Central) Calcutta Vs. Associated Industrial Development Co. P. Ltd., reported in MANU/SC/0268/1971; P. M. Mohammad Meerakhan Vs. Commissioner of Income Tax, Kerala reported in MANU/SC/0227/1969; Khan Bahadur Ahmed Alladin Sons Vs. Commissioner of Income Tax, Andhra Pradesh reported in MANU/SC/0161/1967; G. Venkataswami Naidu Co. Vs. The Commissioner of Income Tax reported in MANU/SC/0065/1958; Municipal Corporation of City of Thane Vs. Vidyut Metallics Ltd., and ors., reported in MANU/SC/7899/2007; and, Premji Bhimji Vs. Commissioner of Income Tax reported in MANU/WB/0144/1970. This Court has carefully gone through the aforesaid judgments and is of the considered opinion that no substantial question of law arises in the present appeal. The frequency of transaction carried out during the year shows that approximately 288 transactions took place for the purchase of equity shares through out the year and about 162 transactions of sale have been entered with various share brokers including Arihant Capital; JM Finance P. Ltd., etc., and, therefore, as the assessee has entered into multiple transactions for various listed Companies, it was a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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