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TMI Blog2015 (9) TMI 1559X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.7.2008 declaring total income at Rs. 25,34,850/-. The return was selected for scrutiny assessment under CASS and accordingly statutory notices were issued and served upon the assessee. 3.1. During the course of the scrutiny assessment proceedings, the Assessing Officer noticed that the assessee has shown income from speculation, capital gains and income from other sources. The assessee was asked to furnish reasons as to why the income from Short Term Capital Gain of Rs. 24,86,318/- be not treated as income from business. The assessee explained that it was showing investment in shares consistently and offering the same as Short Term Capital Gain/ Long Term Capital Gains as applicable. It was further explained that the assessee has no borr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration to the orders of the authorities below. The issue whether the income from sale and purchase of shares in a particular case should be treated as capital gain or as business income has been a debatable issue and there are conflicting decisions of the Tribunal on this issue. Each case is, therefore, to be based on its own factual situation. The Hon'ble Supreme Court in the case of CIT Associated Industrial Development Co Pvt. Ltd. 82 ITR 586, which decision has also been considered by the CBDT in its Circular No. 4/2007 dt. 15.6.2007, has observed that : "Whether a particular holding of shares is by way of investment or forms part of the stock-in-trade is a matter which is within the knowledge of the assessee who holds the shares and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as business income. In all cases, the intention is manifested by the assessee himself by his conduct and other relevant facts. 10. As mentioned elsewhere, the assessment for A.Y. 2004-05, 2005- 06, 2006-07 and 2009-10 have been made u/s. 143(3) of the Act. In all these scrutiny assessments, we find that the assessee's main source of income is from speculation income, Short Term Capital gains and income from other sources. Rule of consistency says that on same set of facts, the Revenue authorities should not take a different view. There has to be uniformity in treatment and consistency when the facts and circumstances are identical particularly in the case of the assessee. Our view is fortified by the decision of the Hon'ble Bomby High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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