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TMI Blog2013 (6) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... e profit on sale of investment as long term capital gain/short term capital gain as declared by the assessee without appreciating the facts and circumstances of the case. 3. Brief facts of the above two issues are that while doing scrutiny assessment Assessing Officer has added an amount of Rs.4,85,888/- received from Ritika Limited by observing that during assessment proceedings for the assessment year 2004-05 in the case of M/s. Ritika Limited of which assessee is a President & C.E.O., it was noticed that M/s. Ritika Limited has made a payment of Rs.4,85,888/- to the assessee on account of commission. In the computation of income, the assessee has shown income from salary of Rs.10,80,888/- received from M/s. Ritika Limited. On being ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he requested to upheld the same. 6. After hearing the rival submissions and keeping in view of the facts that there is no dispute that since the commission of Rs.4,85,888/- was already included in the income certified in Form No16 issued by M/s. Rititka Limited and the assessee himself has shown the same under the head "salary". Therefore, we find no justification on the part of the Assessing Officer to add the same again under the head "commission'. Hence, by following the order of the Ld. CIT(A), we dismiss ground No.1 of the revenue. 7. As regarding ground No.2, Assessing Officer after analyzing the transactions entered by the assessee during the financial year and by placing reliance in the CBDT Instruction No.1827 dated 31.08.1989, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.38,12,661/-. On the other hand it was contended by the appellant that she is an investor in shares and units and not a trader as held by the A.O. It was submitted by the appellant that since last several years she had made investment in shares and units and on sale thereof the income was declared under the head 'income from capital gains'. The income so declared by the appellant was accepted by the A.O. in all earlier assessment years. It was argued by the appellant that she is a fashion designer and engaged in the business activities of readymade garment industry and not at all engaged in the business of trading of shares and securities as she did not have any expertise in that field. It was argued by the appellant that in order to gai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents were always reported "at cost" and not "at cost or market value whichever is lower" which is the case if an assessee carried out the trading business of shares and securities. 10. On careful consideration of the facts, I am of the opinion that the A.O. was not justified in holding that the appellant was a trader in shares and units and not the investor. In all the earlier years, the appellant has disclosed the profit or loss on sale of shares and units under the head "income from capital gain" and same was accepted by the AO. In the year under consideration there is no change in the facts of the case. Though, the principle of resjudicata is not applicable to the Income Tax proceedings, however, in number of cases, the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. At the time of hearing, Ld. Departmental Representative relied on the order of the Assessing Officer and further pointed out the various observations made by Assessing Officer in the assessment order. 9. On the other hand, Ld. Counsel for the assessee has reiterated the submissions made before the revenue authorities and contended that the action of the Ld. CIT(A) is fair and just in the facts and circumstances of the case. Therefore, he requested to upheld the same. 10. After hearing the rival submissions and keeping in view of the fact that the assessee invested in shares, securities & units in the past years as well. The investments were made out of own funds. From the Balance Sheet as of 31st March 2002 & 2003 your honour will not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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