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TMI Blog2013 (2) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... s of ₹ 4,93,366/- on sale of shares and short term capital gains of ₹ 9,27,202/- on sale of shares as business income instead of income from capital gains and taxed it at normal rates of tax. 2. The solitary issue is with regard to denying LTCG of ₹ 4,93,366/-, claimed by the assessee and consequently denying exemption under section 10(38) and denying STCG of ₹ 9,27,202/- and treating the same as business income and taxing the same at normal rate. 3. The facts are that the assessee a lady, is having income from house property, capital gains and other sources. With regard to stocks and shares, the assessee declared income from: LTCG at Rs.4,93,365 STCG at Rs.9,27,202 Loss on derivatives at Rs.21,069 Specul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had earned a dividend income of ₹ 4.56 lacs. On an enquiry from the Bench, the AR pointed out that out of the total 288 transactions, the average holding period at 11 months on bought transactions and average holding period at 13 months on sold transactions. This, according to the AR was on similar pattern as that in the immediate preceding year, i.e. assessment year 2005-06, wherein, the AO had accepted the holding pattern under section 143(3). 9. The AR also pointed out that the assessee was doing the business in exactly same manner and pattern as that of her husband, whose conduct was accepted by the same AO, and did not make any departure from the pattern declared by the assessee. The AR, therefore, pleaded that the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to the nature of the activities, the manner of keeping records and the presentation of shares as investment at the end of the year, in all the years. The revenue submitted that a different view should be taken for the year under consideration, since the principle of res judicata is not applicable to assessment proceedings. The Tribunal correctly accepted the position, that the principle of res judicata is not attracted since each assessment year is separate in itself. The Tribunal held that there ought to be uniformity in treatment and consistency when the facts and circumstances are identical, particularly in the case of the assessee. This approach of the Tribunal cannot be faulted. The revenue did not furnish any justification for adop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be made with regard to ascertaining the factual aspect of the case and to prove that the case did not fall within the parameters of the ratio laid down by Gopal Purohit (supra). We, after detailed appreciation, cannot accept the submissions of the DR, because, the assessee had placed comprehensive details, as certified, in the paper book, before the revenue authorities. We are also aware, from going through the APB that identical facts had been accepted in the preceding year in her own case in the scrutiny proceedings, and identical position that of the assessee in the current year, has been accepted in scrutiny proceedings of the assessee's daughter and husband, i.e. Ms. Kaitki Mehta and Mr. Satish Mehta. As cited by the AR, and as ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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