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TMI Blog2016 (10) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, because, every investor invest the money for gain and not for loss. In the basis of principle of judicial discipline, consistency 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 brough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STT tax was paid on sale and purchases. The learned counsel also explained that there was a loss on the transaction for A.Y 2009-10 which was allowed to be carried forward by the department. On the rule of consistency reliance was placed upon the decisions in Gopal Purohit vs. JCIT (2009) 29 SOT 117 (Mum) (which was affirmed by Hon ble Jurisdictional High Court in 336 ITR 287 (Bom) and SLP was dismissed by Hon ble Apex Court in (2011) 334 ITR (St.) 308 (SC)), Shantilal Jain vs. ACIT (2011) 132 ITD 466 (Mum), Dharmesh R. Shah vs. JCIT (2013) 60 SOT 182 (Mum), Kunverji Nanji Kenia vs. Addl. CIT (2010) 131 TTJ 87 (Mum) and another decision from Hon ble Jurisdictional High court in CIT vs. Naishadh V. Vachharajani (ITA No. 1042 of 2011), order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ularly and frequently dealing in shares and is doing systematic and organized activity of trading. It was further observed that the volume of transaction is huge, therefore, the assessee is engaged in commercial activity and the intention of the assessee is to earn profit. On appeal before the learned CIT(A) the stand taken in the assessment order was affirmed against which the assessee is in appeal before this Tribunal. We note that the Assessing Officer has also analysed the holding period which as per the revenue is less than 90 days. We have also analysed the factual matrix of last 5 years of the assessee which has been provided in the paper book. It is noted that for A.Ys 2006-07 to 2010-11 the short term capital gain on sale of invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer as well as of the Ld. DR that there was large volume of purchase and sale of shares by the assessee is concerned, we are of the view that the large volume per se does not mean activity of business as the assessee has to maintain the distinction between shares held as stock and those held as investment in its books. Though volume of transaction is an important indicator of the intention of the assessee, but whether to deal in shares as trading asset or to hold the shares as investor is certainly not the sole criteria. A prudent investor always keeps a watch on the market trend, therefore, is not barred under the law from liquidating his investment in shares. The law itself has recognizes this fact by taxing these transactions und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tical ratio was laid down in Vinod K. Nevatia vs. ACIT (2011) 49 DTR (Mum) (Trib) 16 and Janak S. Rangwalla vs. ACIT (2007) 11 SOT 627 (Mum), Paresh D. Shah vs. JCIT (2010) 2 ITR (Trib) 311 (Mum), Suresh Kumar Seksaria vs. ACIT (2010) 1 ITR (Trib) 783 (Mum). Identical ratio was laid down in ACIT vs. Dinesh K. Mehta (HUF) (2010) 39 SOT 488 (Mum). Considering the totality of facts, we are of the view that where the assessee has shown investment in shares under the head investment in the Balance sheet for many years and same is accepted by the Assessing Officer in the past, there is no justification for treating the activity of assessee of purchase and sale of shares as business particularly when no money has been borrowed for making invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 289 ITR 318 (Del.) v. Berger Paints India Ltd. vs CIT 266 ITR 99 (SC) vi. DCIT vs United Vanaspati (275 ITR 124) (AT)(Chandigarh ITAT) vii. Union of India vs Kumudini N. Dalal 249 ITR 219 (SC) viii. Union of India vs Satish Pannalal Shah 249 ITR 221 ix. B.F.Varghese vs State of Kerala 72 ITR 726 (Ker.) x. CIT vs Narendra Doshi 254 ITR 606 (SC) xi. CIT vs Shivsagar Estate 257 ITR 59 (SC) xii. Pradip Ramanlal Seth vs UOI 204 ITR 866 (Guj.) xiii. Radhaswamy Satsang vs CIT 193 ITR 321 (SC) xiv. Aggarwal warehousing Leasing Ltd. 257 ITR 235 (MP) 5. The sum and substance of the aforesaid judicial pronouncements is that on the basis of principle of judicial discipline, consisten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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