TMI Blog2022 (2) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Tribunal has recorded that it has been held as an investment and not as a stock in trade. Similar finding has also been rendered by the CIT. Therefore, the said contention cannot be accepted. Volume of transaction - Volume of transaction cannot have any impact to consider as to whether the transaction would give rise to short-term capital gain or not. This aspect of the matter was rightly dealt with by the Tribunal by taking note of the fact that similar transactions were accepted by the department for the previous year and the subsequent assessment year as giving rise to capital gain and not as business income. In fact, for the subsequent investment year 2007-08, proceedings initiated under Section 263 were dropped by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adv., Mr. Siddhartha Das, Adv. ORDER T.S. SIVAGNANAMM J. : This appeal of the revenue filed under Section 260A of the Income Tax Act (the Act in brevity) is directed against the order dated 19th October, 2016 passed by the Income Tax Appellate Tribunal, C-Bench, Kolkata (the Tribunal ) in ITA No.1429/Kol/2013 for the assessment year 2006-07. The revenue has raised the following substantial questions of law for consideration: (i) Whether on the facts and in the circumstances of the case, the Learned Tribunal erred in law in treating the income from trading in shares as capital gains and not business income without determining whether shares held by the assessee as investment (thereafter giving rise to capital gains) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax, Central-1, Kolkata (CIT) invoked his power under Section 263 of the Act and passed an order dated 4th March, 2011 holding that the assessing officer did not properly examine the question as to whether the gain on purchase and sale of shares and security had to be assessed under the head of capital gain or income from business . The CIT directed the assessing officer to make a fresh assessment. Pursuant to such direction, the assessing officer examined the question and held that the gain on sale of shares had to be under the head of income from business . Aggrieved by such order, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals), Central -1, Kolkata contending that in the past, that is, for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the income tax and in this regard placed reliance on the decision in the case of Commissioner of Wealth Tax vs- Meatles (P) Ltd. Reported in (1984) 19 Taxman 116 (Delhi). We have heard Mr. Khaitan on the above submissions. Firstly, we note that the contention of the revenue that the shares and mutual funds that were sold during the year which resulted in the income has been shown as stock in trade and not an investment is a factually incorrect submission. Though the learned standing counsel contended that she has oral instructions to say so the facts are otherwise. On going through the order passed by the Tribunal in paragraph 10 therein we find that the Tribunal has recorded that it has been held as an investment and not as a stock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. Therefore, the second contention raised by the revenue also is not tenable. With regard to the plea of res judicata is concerned, the Tribunal rightly noted the law that rule of res judicata is not applicable to income tax proceedings but the principle of consistency will definitely apply. In the preceding paragraphs we have set out the facts to show as to how the department has examined the returns filed by the assessee for the previous assessment year and the subsequent year. Therefore, we find that there cannot be different yardstick for the assessment year under consideration when facts and circumstances are identical. Reliance has been placed on the decision in the case of Meatles (P) Ltd. (supra). The said decision is clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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