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TMI Blog2022 (2) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal, C-Bench, Kolkata (the 'Tribunal') in ITA No.1429/Kol/2013 for the assessment year 2006-07. The revenue has raised the following substantial questions of law for consideration: (i) Whether on the facts and in the circumstances of the case, the Learned Tribunal erred in law in treating the income from trading in shares as capital gains and not business income without determining whether shares held by the assessee as investment (thereafter giving rise to capital gains) or stock in trade (therefore giving rise to business profit)? (ii) Whether on the facts and circumstances of the case, the Learned Tribunal erred in law in not appreciating that an under assessment made by the Assessing officer in a particular assessment year cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the head of "capital gain" or "income from business". The CIT directed the assessing officer to make a fresh assessment. Pursuant to such direction, the assessing officer examined the question and held that the gain on sale of shares had to be under the head of "income from business". Aggrieved by such order, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals), Central -1, Kolkata contending that in the past, that is, for the assessment year 2005-2006, similar transactions were considered as giving rise to short-term capital gain and merely because there was large volume and frequency of transactions, it cannot automatically make the transaction as trading in shares. The assessee, therefore, contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he shares and mutual funds that were sold during the year which resulted in the income has been shown as stock in trade and not an investment is a factually incorrect submission. Though the learned standing counsel contended that she has oral instructions to say so the facts are otherwise. On going through the order passed by the Tribunal in paragraph 10 therein we find that the Tribunal has recorded that it has been held as an investment and not as a stock in trade. Similar finding has also been rendered by the CIT. Therefore, the said contention cannot be accepted. The second submission is with regard to the volume of transaction which, according to the revenue, is to be noted to ascertain the intention of the assessee. It was pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply. In the preceding paragraphs we have set out the facts to show as to how the department has examined the returns filed by the assessee for the previous assessment year and the subsequent year. Therefore, we find that there cannot be different yardstick for the assessment year under consideration when facts and circumstances are identical. Reliance has been placed on the decision in the case of Meatles (P) Ltd. (supra). The said decision is clearly distinguishable on facts as could be seen from paragraph 5 of the judgment which arose under the Wealth Tax Act, 1957 wherein the department urged that an inadvertent admission was made in the income tax appeal for exclusion of the income from assessment. Therefore, it was held that the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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