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TMI Blog2012 (9) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the CIT (A) erred in directing the AO to accept the claim of the assessee with regard to the short term capital gain without appreciating the fact that assessee has done purchase and sale of shares in large scale and at high frequency and period of holding is also not very long . 3. For the assessment year 2006-2007, the only ground raised is as under: On the facts and circumstances of the case, the CIT (A) erred in directing the AO to accept the claim of the assessee with regard to the short term capital gain without appreciating the fact that assessee has done purchases and sale of shares in large scale and high frequency period of holding is also not very long. 4. The assessee is an individual and shown income from salary, income fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frequency and period of holding is also very long. He further submitted that the CIT (A) has allowed the claim of the assessee by observing that for the assessment year 2004-2005 the short term capital gain declared by the assessee was accepted by the AO whereas, the transactions in both the years are different as the volume of the transaction is very large in the assessment years under consideration. He has further submitted that every assessment year is a separate unit and, therefore, the res judicata is not applicable in the matter of taxation. He has referred the details of transactions of purchase and sale giving raise to the short term capital gain and submitted that the assessee has carried out large number of transactions and the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances are identical for the earlier assessment years and when the AO has accepted the claim of the assessee. He has further pointed out that for the assessment years 2008-2009 and 2009-2010 the AO has accepted the claim of the assessee. The learned AR has further submitted that for the assessment year 2007- 2008 the CIT (A) has allowed the claim of the assessee and the assessee has not received any notice of appeal if filed by the Department. The learned AR has filed the chart showing the comparative details for the various assessment years and submitted that the purchase and sale pattern for all the assessment years right from 2003-2004 to assessment year 2009-2010 are identical except some variation of amount, therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period is very less or zero. 7. We have considered the rival submissions as well as relevant material on record. When the assessee is maintaining a separate portfolio as regards the investment in shares and trading shares in the books of account, valuing the shares at cost, using its own funds and not borrowed funds and claim of assessee has been accepted by the AO in the earlier year as well as in the subsequent year as investment and capital gain arising out of the purchase and sale of the shares then, the AO cannot take a different view for the assessment year under consideration in the absence of any material or substantial change in the facts and circumstances during the years under consideration. The details of the purchase and sale s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and long term capital gain as business income. Further, for the assessment years 2008-2009 and 2009-2010, the capital loss declared by the assessee has been accepted by the AO. It is apparent and manifest from the record that the AO has taken divergent views for different assessment years when the transactions are identical and the facts and circumstances are also similar. Therefore, this act of the AO is contrary to the principle of consistency. The Hon ble jurisdictional High Court in the case of Gopal Purohit has held as under: The Tribunal has entered a pure finding of fact that the assessee was engaged in two different types of transactions. The first set of transactions involved investment in shares. The second set of transactions inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 adopting a divergent approach for the assessment year in question. Question (b), therefore, does not also raise any substantial question of law. 9. As held by the Hon ble jurisdictional High Court, the AO cannot take a different view when the facts and circumstances are identical for all the assessment years. For t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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