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TMI Blog2012 (11) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... d be treated as those in the nature of investment transactions and the profit received therefrom should be treated either as short term or, as the case may be, long term capital gain,depending upon the period of the holding. – Further, the principle of res -judicata is not attracted since each assessment year is separate in itself. The Tribunal held that there ought to be uniformity in treatment and consistency when the facts and circumstances are identical, particularly in the case of the assessee - assessee’s investments leading to earning of profit in hand could not be termed as business income - issue is decided in assessee’s favour. - ITA No.3411 & 6472/M/2009 - - - Dated:- 8-6-2012 - SHRI B. RAMAKOTAIAH, AND SHRI S.S. GODARA, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rected the AO to recompute the disallowance by following Rule 8D of Income Tax Rules, 1963. 6. Therefore, the assessee is aggrieved. 7. Ld AR before us has submitted that for assessment year in hand i.e. 2005-06, undisputedly, Rule 8D cannot be applied. In this regard, he relied upon the judgment of Hon ble jurisdictional High Court in Godrej Boyce case 234 CTR 1. At the same time, he has stated at the Bar that by exercising our jurisdiction u/s 254(1) of the Act, we should determine the reasonable expenditure in peculiar circumstances of this case. 8. The ld DR on the other hand has not seriously contested the argument and offer of ld AR (supra). 9. After hearing both the parties, we find that the Ld. CIT (A) is not correct in by d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of share trading, per Assessing Officer, presumption could be drawn that its profits were in the nature of business instead of capital gain . Hence, the Assessing Officer held that capital gain in question of Rs. 3,74,65,669/- was in fact assessee s business income. 13. In appeal, though ld CIT (A) has observed that the assessee had maintained separate D-mat A/cs for trading and investment, assessee Board had passed resolution to invest in shares, investments had also been shown separately in books of account. Still held income to be business income by holding that the assessee had involved in large scale trading, no separate funds were maintained for investment and the assessee s intention in share transactions was to earn maxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resh D shah vs. JCIT 2 ITR 311 9. Suresh K Seksaria vs. ACIT 1 ITR 783 10. ACIT vs. Chetan K Mehta 46 SOT 25 11. ACUT vs. Jagadish Master, HUF 47 SOT 54 12. Sunil K Ganeriwal vs. DCIT 134 ITD 179 15. CIT vs. Jubilant Sec. P. Ltd. 333 ITR 445 16. CIT vs. Amit Modi 334 ITR 192 and prayed for acceptance of the issues in assessee s favour. 18. On the other hand, the ld DR has argued on behalf of the Revenue that from the volume of transactions as well as profits earned, only one conclusion could be drawn i.e. assessee is involved in the business of trading instead of investment. Hence, prayed for rejection of the issue. 19. We have heard both the learned representatives at length. Facts are not in dispute. As per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o intra-day transaction. Holding period for long term capital gains is more than one year. The Department has not relied on any material that the assessee has any other motive for the purpose of investments in hand except to invest and wait for returns. The AO also treated long term capital gain earned on investments accepted in earlier year also as business income, without any basis. 21. In view of our above discussion, we hold that the assessee s investments leading to earning of profit in hand could not be termed as business income. Therefore, the issue is decided in assessee s favour. ITA No. 6472/M/2009 (AY: 2006-07) 22. In this appeal, both the ld representatives have fairly stated that the same issue is involved i.e. share ..... X X X X Extracts X X X X X X X X Extracts X X X X
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