Itta/432/2014 Of Vijayender Tulla v. Commissionr Of Income Tax - Iii

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR I.T.T.A. No. 432 of 2014 DATED:17.07.2014 Between:Vijayender Tulla,Hyderabad.And … Appellant Assistant Commissioner of Income Tax,Hyderabad. ….Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA ANDTHE HON’BLE SRI JUSTICE SANJAY KUMAR I.T.T.A. No. 432 of 2014 Judgment:(per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is sought to be preferred against the judgmentand order of the learned Tribunal dated 29/11/2013 in relation tothe assessment year 2008-2009 on the following suggestedquestions of law: 1. Whether on the facts and in thecircumstances of the case, the decision of theAppellate Tribunal upholding the orders of theAssessing Officer and Commissioner of Income Tax(Appeals) in assessing as income from business theshort term capital gain of Rs. 95,89,511/-admitted by the appellant suffers from perversity ? 2. Whether on the facts and in thecircumstances of the case, the Appellate Tribunalerred in not reversing the orders of the AssessingOfficer and the Commissioner of Income Tax(Appeals) who have chosen to depart from theconsistent view taken by the income tax departmentfor the earlier years even when the facts are identicalwith the facts in the earlier years ? However, the learned counsel while assailing the impugnedjudgment and order of the learned Tribunal, says that the appealshould be admitted as the learned Tribunal did not uphold the ruleof consistency on identical facts and issues. In order to examine this contention, we have to considerwhether the rule of consistency is required to be followed or not. The learned Tribunal, in order to consider the claim ofinvestment in the form of short term capital gain, on fact, foundthat it is not an investment, but it is a trading activity. When thelearned Tribunal, on fact, found after scrutiny of the transactionthat it is not an investment, the question of treating it as a shortterm gain does not arise. We have to follow the accepted principle of law. If anydecision is rendered on any fact previously, even in relation to thesame assessment year, it cannot be binding always and theprinciple of rule of consistency will apply only when the pure pointof law is based on correct appreciation of fact. The law on fact isone thing, but the decision on correct appreciation of fact isanother thing. But, if conclusion on the fact is varying on correctappreciation of fact, obviously, that decision cannot be applied asa matter of course or on the principle of rule of consistency.Hence, we do not find any element of law involved in this appeal. We accordingly dismiss the appeal. Consequently, the miscellaneous applications, if anypending, shall also stand closed. No costs. __________________ K.J. SENGUPTA, CJ _________________ SANJAY KUMAR, J 17[th] July, 2014 pnb