The Commissioner Of Income Tax-12 v. Shri.amrutlal C. Shah

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1708 OF 2011 The Commissioner of Income Tax-12.v. ..Appellant. Shri.Amrutlal C. Shah...Respondent. Mr.Suresh Kumar with Ms. P. S.Cardozo for the Appellant.Mr. Rahul K.Hakani for the Respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATE : 7th March, 2013 PC: In this appeal by the revenue for assessment year 2004-05 following questions have been raised for our consideration. a)Whether on the facts and in the circumstances of the case and in law the Tribunal justified in treating the income of sale of shares amounting to Rs.35,48,201/- as Short Term Capital Gains of Rs.46,06,505/- and Long Term Capital loss of Rs.12,12,454/- instead of income from business by ignoring the frequency, the voluminous transaction of sale of purchase of shares and intention to earn profit? b)Whether on the facts and in the circumstances of the case and in law the Tribunal was justified in holding that principal of consistency must be applied here as authorities did not treat the assessee as Share Trader in preceding year, inspite of existence of similar transactions which cannot be in any way operate as res judicata to preclude the action lie for holding such transactions as business activities in current year? c)Whether on the facts and in the circumstances of the case and in law the Tribunal was justified in allowing the appeal of respondent assessee ignoring the decision of Supreme Court in the case of M/s. Oriented Investment Co. Ltd. 321 ITR 665(SC)? 2)The Tribunal by the impugned order has allowed the claim of the respondent assessee by treating its income from shares under the head capital gains. This was on the basis that for assessment year 2003-04 and for assessment year 2005-06 the Assessing officer under Section 143(3) of the Income Tax Act has taxed the respondent assessee on its income/gains arising out of sale of shares under the head of capital gains. No case is made out by the revenue for taking contrary view. Therefore, following the principle of consistency and uniformity of treatment when facts are identical the claim of the respondent assessee was allowed. In this view of the matter, we see no reason to entertain the proposed questions of law. 3)Accordingly, the appeal is dismissed with no order as to costs. (M.S.SANKLECHA, J.) (J.P. DEVADHAR, J.)