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TMI Blog2016 (3) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... nsistency has to be followed and once in a particular year, if any view is taken, in the absence of any contrary material, no contrary view is to be taken as finality to the litigation is also a principle which has to be followed. Before us, no contrary facts or any adverse material was brought on record by the Revenue, therefore, on the principle of consistency also, the assessee is having a good case in her favour. - Decided in favour of assessee. - ITA NO.6227/MUM/2012 - - - Dated:- 17-3-2016 - Shri Joginder Singh, Judicial Member and Shri Rajendra, Accountant Member For The Assessee by Shri Nishit Gandhi For The Revenue : Shri M.Murli-DR Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order dated 03/08/2012 of the ld. First Appellate Authority, Mumbai. The only ground raised in this appeal pertains to assessing ₹ 29,64,051/-, being gain arising from sale of shares, under the head profession and gains arising from business or profession against the short term capital gains offered by the assessee under the head capital gains . 2. During hearing, the ld. counsel for the assessee, Shri Nishit Gandhi, claimed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund with an intention of earning profit of such funds and there was no intention of the assessee to appreciate the investment so made during the year. b) The assessee had no intention to hold her shares in order to earn regular income out of such purchases. 2. On the facts and in the circumstances of the case and in law, the Learned CIT(A) has failed to appreciate the in depth analysis made by the AO before treating the gains as business income and that circular no. 4 of 2007 has be taken into consideration to decide whether the Gains are to be treated as such or as business. 3. On the facts and in the circumstances of the case and in law, the learned CIT(A) failed to appreciate the fact that the transaction is shown whether by himself or through his agent has to be treated as assessee's own transaction and the motive behind such transaction was to earn maximum profit and not investment. 4. The appellant prays that the order of the CIT(A) on the above ground be set aside and that of the AO be restored. 2. Rival contentions have been heard and record perused. The short term capital gain declared by the assessee was treated by the AO as business in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom business. Based on the finding recorded by ITAT in the case of CIT vs. Gopal Purohit 122 TTJ Mumbai 87, it is open to an assessee to maintain two separate portfolios one relating to investments in shares and other relating to business activities involving dealing in shares. The only delivery based transactions fall within the purview of nature of investment transactions giving rise to capital gains . As stated above, in the past the Department has accepted the claim of the appellant of being an investor. During the year under consideration, the AO has treated the appellant as a trader without bringing on record any reason for deviating from the earlier stand of the Department. I have observed that the case of the appellant is squarely covered by the ratio laid down in the case of CIT vs. Gopal Purohit mentioned supra, therefore, the AO is directed to treat the long term capital gains on sale of shares and sale of mutual funds, sold after 01.10.2004 aggregating to ₹ 14,10,430/- [on sale of shares ₹ 5,87,180/- on mutual funds ₹ 8,23,250/-] as such and allow the exemption to the appellant u/s.10(38) of the Act. Apart from the above, the AO is also directed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t find any reason to interfere in the order of CIT(A) for allowing assessee s claim of long term and short term capital gains earned on sale of shares and mutual funds. 5. In the result, appeal of the Revenue is dismissed. 2.4. In the aforesaid order of the Tribunal, it is noted that there is categorical finding that the Department had been accepting the stand that the assessee was consistently investing in shares and the capital gains, offered by the assessee was assessed either as long term gain or short term gain while passing order u/s 143(3) of the Act. Identical was the situation for A.Ys.2005-06 and 2006-07 framed u/s 143(3) of the Act and the same were found exempted u/s 10(38) of the Act. These findings of the ld. Commissioner of Income Tax (Appeals) as well as of this Tribunal were not contradicted before us, thus, in the absence of any contrary material, on the principle of consistency, the Department is not expected to take a Uturn and assess the income as business income. So far as the contention of the ld. DR and also the observation of the ld. Commissioner of Income Tax (Appeals) that there was a profit motive, we are not impressed by this submission, beca ..... 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