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TMI Blog2023 (7) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... 228 - DELHI HIGH COURT] wherein the Hon ble High court has highlighted the importance of the rule of consistency that consistency does not mean putting iron fetters on the subsequent decision making; it only means expecting that a deviation from the previous decision in similar set of circumstances is explained by way of cogent and rational reasons.The appeal filed by the revenue is dismissed. - Sh. N. K. Billaiya, Accountant Member And Ms. Astha Chandra, Judicial Member For the Appellant : Ms. Smita Singh, Sr DR For the Respondent : Sh. Kapil Goel, Advocate, Sh. Sandeep Goel, Advocate ORDER PER N. K. BILLAIYA, AM: This appeal by the revenue is preferred against the order of the CIT(A)-30, New Delhi dated 12.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On perusal of the details the AO was of the opinion that the impugned income is not short term capital gains but business income. The AO based on his findings solely on the period of holding of the shares. According to the AO period of holding is an important criterion in deciding the nature of portfolio. 6. The AO also found that the assessee has very higher frequency buy and sell thereby indicating that the assessee is spending a lot of his time during the said transaction. 7. The AO found that in A.Y.2013-14 the percent of short term gains to total income was 79.04 % which was 24.67% in A.Y. 2014-15 and has risen to 88.24% for the year under consideration. 8. Referring to the CBDT circular No.4/2007 dated 15.06.2007, the AO tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order and read the relevant operative part of the assessment order. 12. The Counsel for the assessee reiterated what has been stated before the lower authorities. 13. We have given a careful consideration to the orders of the authorities below and have considered the documentary evidences brought on record in the light of rule 18 (6) of the ITAT rules. At the very outset we have to state that in the immediately preceding assessment year and also in subsequent assessment year on similar high value transaction the AO has accepted the profits as short term capital gains. 14. It would be pertinent to mention to the observations of the Hon ble High Court of Delhi in the case of Prem Kumar Chopra in W.P.(C) 12104 /2023 order dated 25.05. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g two decisions inconsistent with each other is what faces us in this writ action. xxxxx 6.3 Thence, under same set of circumstances and in the backdrop of similar set of documentary evidence, the concerned ACIT, pertaining to the assessment year 2016-17 dropped the proceedings, while pertaining to the assessment year 2015-16 opted to proceed further under Section 148 A of the Act. It would also be significant to note that in order dated 28.07.2022, while dropping the proceedings, the ACIT concerned recorded his analysis of the documentary material; but in the subsequent order dated 31.07.2022, while deciding to proceed further under Section 148A of the Act, the same ACIT recorded not even a whiff of analysis, if any, carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the approval of Principal Commissioner Income Tax-10 and order dated 31.07.2022 was issued with the approval of Principal Chief Commissioner of Income Tax, but the satisfaction recorded in both orders' was of same Assistant Commissioner of Income Tax. There is nothing on record to suggest even feebly that the latter sanctioning authority was apprised of the earlier view taken in order dated 28.07.2022. An assessee, deals with the income tax department as a whole, like a body and not its individual organs, especially where left hand does not know what right had sanctioned. 10. In nutshell, the impugned notice and order suffer who infirmities, namely the same proceed on a view inconsistent with the earlier order despite the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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