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TMI Blog2016 (9) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... gly the Ld CIT(A) has held that the principle of consistency should be applied in the present year also, since the assessing officer has not made out a case of change in facts. - Decided against revenue - I.T.A. No. 5254/Mum/2014 - - - Dated:- 27-7-2016 - Shri B.R. Baskaran (AM) Pawan Singh (JM) For The Assessee : Dr.P Daniel For The Department : Shri Nitin R. Waghmode ORDER Per B.R. Baskaran (AM) :- The appeal filed by the revenue is directed against the order dated 16-06- 2014 passed by Ld CIT(A)-29, Mumbai and it relates to the assessment year 2010-11. The revenue is aggrieved by the decision of Ld CIT(A) in holding that the gains arising on sale of shares is assessable as Short term capital gains instead of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activity, while the assessing officer has taken the view that the assessee has carried on the same as his trading activity. It is well settled proposition that the tax authorities have to take into various criterion to decide this contentious issue. The Courts as well as the CBDT have listed out certain important criteria in this regard. However, the question should be resolved on a cumulative consideration of various criteria and most important one is the intention of the party at the time of purchase of shares. If the intention was to hold the shares as his investment, then the gains shall be assessable as Capital gains only. On the contrary, if the intention was to hold the shares as his trading stock, then the gain is assessable under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged in the business of manufacture and sale of stainless steel bars. Hence the activity of investing in shares is not the only activity of the assessee. (b) With regard to the low holding period, the Ld CIT(A) noticed that the assessee has offered gains arising on intraday transactions as business income. In respect of inter day transactions, the Ld CIT(A) has observed that the assessee has sold the shares upon prices reaching the target levels. (c) The assessee s objective was to get maximum gains out of investments. Hence there was churning of the capital to achieve that objective. (d) Volume and frequency of the transaction alone cannot lead to the conclusion that the assessee has acted as trader. In this regard, the Ld CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. (l) The AO has accepted short term capital loss arising on sale/ redemption of shares/mutual fund units in the earlier years. The AO cannot take a different view in the current year, simply for the reason that the assessee has made gains. (m) There is no material change in the facts of the case during the year under consideration vis- -vis the facts prevailing in the earlier years. Hence, under the principle of consistency, the claim of the assessee should be accepted. In this regard, the Ld CIT(A) has taken support of the decisions rendered by Hon ble jurisdictional Bombay High Court in the case of CIT Vs. Gopal Purohit (336 ITR 287), Aroni Chemicals Ltd Vs. DCIT (362 ITR 403) and the decision rendered in other cases, viz., ACIT V ..... X X X X Extracts X X X X X X X X Extracts X X X X
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