9911796707
TMI Blog2015 (9) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing question of law for our consideration: "Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in upholding the Commissioner of Income Tax (Appeal)'s order and treating the Gains from Share Transactions as Short Term Capital Gain whereas it was to be taxed under the head "Business Income" ?" 3. The respondentassessee is a senior citizen having income on account of capital gains, business income and income from other sources. The Assessing Officer was of the view that the amount claimed as short term capital gains of Rs. 9.25 crores was in fact business income and has to be taxed accordingly. This view was inter alia taken on the basis of the following: (a) that the assessee dealt w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year as a part of the opening investment on 1 April 2007. (g) the respondent had not resorted to churning of shares or repetitive transactions in shares of the same company. (h) for the earlier Assessment Years i.e. AY 2005-06 and AY 2006-07, the Assessing Officer had, in the proceedings under Section 143(3) of the Act, accepted the stand of the respondent assessee and taxed the profit earned on purchase and sale of shares as short term capital gains; (i) dividend Income earned was over Rs. 8.50 lakhs; (j) the respondent - assessee had not borrowed any funds but has used her own funds for the purpose of investment in shares; (k) Besides all transactions were delivery based transactions; and (l) the speculation loss to which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 19 August 2015 directed the Revenue to place on record whether or not any appeal has been preferred against the order of the Tribunal dated 31 August 2012 in the case of respondent-assessee's son. This was because the impugned order has followed the order dated 31 August 2012 of a Coordinate Bench in the case of respondent's son on identical facts. 7. Mr.Malhotra, learned Counsel appearing for the Revenue filed an affidavit dated 8 September 2015 of Shri.Ramnath Prabhakar Murkunde, Assistant Commissioner of Income Tax. It inter alia states that no appeal has been filed against the order of the Tribunal dated 31 August 2012 passed by the Tribunal in the case of respondentassessee's son. In paragraphs 7, 8 and 9 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the short term capital gains in respect of respondentassessee has to be taxed as business income. In these circumstances, this appeal ought to be admitted. He further relies upon the affidavit dated 8 September 2015 of the Assessing Officer to state that the decision of the Tribunal in the case of respondent'assessee's son dated 31 August 2012 from which no appeal has been preferred, should not in any way impact the decision taken in respect of the present appeal. 9. We find that the CIT (A) in his order has considered all the facts including the stand taken by the Revenue as found in the Assessing Officer's order. On examination of all the facts it has inter alia come to the conclusion that the activities carried out by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s son and the respondent - assessee, particularly, when the Tribunal has observed that the facts in both the cases are identical. The decision taken on the basis that the facts are not identical must be after recording the circumstances which evidence the difference of facts in two cases and must be so mentioned in the affidavit. The further contention that the officers of the Department who took the decision to file an appeal in this case were different from the officers who have taken decision not to file appeal in the case of respondent assessee's son, is no reason not to adopt a consistent stand in identical matters. The Income Tax Department functions as one unit and its stand in identical matters cannot be different merely beca ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
