DCIT, New Delhi v. M/s. Malvika Investments & Services Pvt. Ltd., New Delhi

ITA 123/DEL/2014 | 2010-2011
Pronouncement Date: 29-09-2016 | Result: Dismissed

Appeal Details

RSA Number 12320114 RSA 2014
Assessee PAN AAACM1953H
Bench Delhi
Appeal Number ITA 123/DEL/2014
Duration Of Justice 2 year(s) 8 month(s) 22 day(s)
Appellant DCIT, New Delhi
Respondent M/s. Malvika Investments & Services Pvt. Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 29-09-2016
Appeal Filed By Department
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 29-09-2016
Date Of Final Hearing 08-08-2016
Next Hearing Date 08-08-2016
Assessment Year 2010-2011
Appeal Filed On 07-01-2014
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA JUDICIAL MEMBER ITA NO. 123 /DEL/201 4 A.Y. 2010 - 11 DCIT CIRCLE 6(1) VS. MALVIKA INVESTMENTS & SERVICES P.LTD. ROOM NO.413 B 1/54 JANAKPURI C.R.BLDG. IP ESTATE NEW DELHI 110 058 NEW DELHI PAN: AAACM 1953 H (APPELLANT) (RESPONDENT) APPELLANT BY : SH. RAJESH KUMAR SR.D.R RESPONDENT BY : SH. RAKESH GUPTA ADV. AND SH. SOMIL AGGARWAL ADV. ORDER PER J.SUDHAKAR REDDY A.M. THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - IX NEW DELHI DATED 24.10.2013 PERTAINING TO THE ASSESSMENT YEAR (A.Y.) 2010 - 11. 2. FACTS OF THE CASE : - THE FACTS O F THE CASE ARE BROUGHT OUT AT PARA 3.1 OF LD.CIT(A) S ORDER WHICH ARE EXTRACTED FOR READY REFERENCE. THE APPELLANT COMPANY IS A NON BANKING FINANCE & INVESTMENT COMPANY. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE 2 COMPANY EARNED DIVIDEND INCOME OF R S.1 24 616/ - SHORT TERM CAPITAL GAIN OF RS.70 20 731/ - AND LONG TERM CAPITAL GAINS OF RS.4 46 857/ - ON SALE OF UNITS OF MUTUAL FUNDS. THE A.O. HELD THAT APPELLANT COMPANY HAS TRADED IN MUTUAL FUNDS AND SHARES AS THE OTHER ITEM OF INCOME SHOWN IN THE P&L ACCOUNT IS INTEREST INTEREST ON FDR AND DIVIDEND INCOME AND SHARE TRADING FUTURE PROFITS AND THUS TAXED THE INCOME DECLARED FROM SHORT TERM CAPITAL GAIN AND LONG TERM CAPITAL GAIN AS BUSINESS INCOME. 3. AFTER HEARING RIVAL SUBMISSIONS WE HOLD AS FOLLO WS. 4. THE FIRST APPELLATE AUTHORITY CONSIDERED THE FOLLOWING SUBMISSIONS OF THE ASSESSEE. FACTS OF THE CASE ARE THAT THE APPELLANT COMPANY HAS MADE SUBSTANTIAL INVESTMENTS IN LOW RISKS MUTUAL FUNDS UNITS AND TO A LESSER EXTENT IN SHARES. ON TRANSFER OF THESE INVESTMENTS THE GAIN RESULTED WHICH WAS SHOWN AS SHORT TERM CAPITAL GAINS AND LONG TERM CAPITAL GAINS DEPENDING UPON THE PERIOD OF HOLDING SUCH CAPITAL ASSETS. CASE OF THE ASSESSEE IS THAT THE ASSESSEE COMPANY STARTED INVESTING SURPLUS FUNDS WITH MUTAL FUNDS AND TO SOME EXTENT IN SHARES AND THE OBJECTIVE WAS TO EARN DIVIDEND INCOME AND STEADY APPRECIATION IN THE VALUE OF INVESTMENTS BUT AT THE SAME TIME TO UNDERTAKE THE LIMITED RISK. THEREFORE THE GAINS WERE SHOWN BY THE APPELLANT COMPANY UNDER THE HEAD CAPITAL GAINS. THE ASSESSEE COMPANY HAD SHOWN THE GAINS IN EARLIER YEARS ALSO UNDE R THE HEAD CAPITAL GAIN WHICH HAS BEEN ACCEPTED AS SUCH. THESE INVESTMENTS WERE SHOWN BY THE ASSESSEE YEAR AFTER YEAR UNDER THE HEAD INVESTMENT; IN ALL THE BALANCE SHEETS WHICH TOO HAS BEEN ACCEPTED AS SUCH. THEREFORE THERE IS NO INFIRMITY IN SHOWING THE INCOME UNDER THE HEAD CAPITAL GAINS AS SHOWN BY THE 3 APPELLANT COMPANY. YOUR GOOD SELF WOULD ALSO KINDLY APPRECIATE THAT THERE WERE NOT HUNDREDS OR THOUSANDS OF TRANSACTIONS WHICH ARE THERE IN CASE OF A TRADER ASSESSEE BUT IN THE INSTANT CASE THERE W ERE IN ALL MERE FIFTY TRANSACTIONS OF PURCHASE OF UNITS INVOLVING TWELVE SCHEMES AND FORTY EIGHT TRANSACTIONS OF SALE OF UNITS INVOLVING FOURTEEN SCHEMES OF VARIOUS MUTUAL FUNDS. NUMBERS OF TRANSACTIONS FOR PURCHASE OF SHARES WERE ONLY THREE AND SALE OF SH ARE WERE JUST TWO. IT MEANS THAT PER WEEK TRANSACTION COMES TO ONE WHICH BY NO STRETCH CAN BE SAID TO BE A BUSINESS. ALSO THERE ARE NO BORROWED FUND WHICH ALSO PROVES THAT THE INVESTMENTS WERE SIMPLY INVESTMENT AND THERE WAS NO ELEMENT OF BUSINESS.' 5. HE ALSO CONSIDERED THE SUBMISSIONS OF THE ASSESSEE THAT THE PRINCIPLE OF CONSISTENCY AS IN THE EARLIER ASSESSMENT YEARS HAVE TO BE APPLIED. THEREAFTER AT PAGE 8 AND 9 HE HAS HELD AS FOLLOWS. 8. THE REASONS GIVEN BY AO THE SUBMISSION OF THE APPELLANT AN D THE FACTS ON RECORD ARE CONSIDERED. THE AO HAS ALSO BROUGHT ON RECORD CIRCULAR NO. 4 OF 2007 DATED 15.6.2007 ISSUED BY CBDT WHICH COVERS THE VARIOUS PARAMETERS TO BE CONSIDERED IN DETERMINING WHETHER THE ACTIVITY OF TRADING OF SHARES IS TO BE TAXED UND ER THE HEAD 'INCOME FROM BUSINESS & PROFESSION' OR 'SHORT TERM CAPITAL GAINS'. THE AO HAS ALSO REFERRED TO THE HON'BLE AUTHORITY - FOR ADVANCE RULING'S DECISION REPORTED IN 288 ITR 641 ON THIS ISSUE. THE AO HAS FINALLY DISCUSSED THE DECISION OF HON'BLE SUPRE ME COURT IN THE CASE OF CIT BOMBAY VS. H. HOICK LARSEN 160 ITR 67. AO HAS HIGHLIGHTED THE FACT THAT ASSESSEE EARNED DIVIDEND OF RS. 1 24 616/ - . IT HAS BEEN CONCLUDED THAT THE ASSESSEE HAS DELIBERATELY TRIED TO SHOW HUGE INCOME EARNED FROM 4 MUTUAL FUNDS AS CAPITAL GAINS INSTEAD OF BUSINESS INCOME TO AVOID A HIGHER RATE OF TAXATION. IT IS OBSERVED THAT THE AO HAS NOT APPLIED THE PRINCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT AND IN THE CIRCULAR REFERRED IN THE RIGHT PERSPECTIVES. IT IS OBSERVED FROM TH E DETAILS PLACED IN THE PAPER BOOK THAT THE APPELLANT COMPANY HAS MADE INVESTMENTS IN THE MUTUAL FUNDS AND SHARES WHICH HAS BEEN SHOWN BY THE SAID COMPANY UNDER THE HEAD 'INVESTMENTS' IN THEIR BALANCE SHEET. THERE IS ALSO NO CHANGE IN THE YEAR UNDER CONSI DERATION AS WELL AS COMPARED TO THE PRECEDING YEARS WHERE ALSO THE INCOME HAS BEEN ASSESSED AS SHORT TERM CAPITAL GAIN AND NOT AS BUSINESS INCOME OF THE ASSESSEE. IT IS AN ACCEPTED FACT THAT THE ASSESSEE HAD SHOWN THE STOCKS IN HIS BOOKS OF ACCOUNTS AS I NVESTMENTS AND NOT AS STOCK - IN - TRADE AND THIS IMPORTANT TREATMENT FROM THE ACCOUNTING ANGLE HAS A BEARING ON THE ISSUE. THERE IS NO STOCK IN TRADE OF SHARES OR MUTUAL FUNDS IN THE BALANCE SHEET OF THE ASSESSEE RATHER THESE ARE CONSISTENTLY SHOWN BY THE AS SESSEE UNDER THE HEAD INVESTMENTS. THE ASSESSEE COMPANY HAD SHOWN THE GAINS IN EARLIER YEARS ALSO UNDER THE HEAD CAPITAL GAIN WHICH HAS BEEN ACCEPTED AS SUCH. ANOTHER RELATED ISSUE FROM THE ACCOUNTING POINT OF VIEW IS HOW THE SHARES HAVE BEEN VALUED BY TH E ASSESSEE IN BOOKS OF ACCOUNTS. IT IS SEEN THAT THE ASSESSEE HAS ALWAYS VALUED THE SHARES AT COST IN THE BALANCE SHEET WHICH CLEARLY INDICATES THAT SAME HAVE BEEN TREATED AS INVESTMENT ONLY. DURING THE YEAR UNDER CONSIDERATION ASSESSEE HAD AN INVESTMENT S IN SHARES AND MUTUAL FUNDS AMOUNTING TO RS. 6 34 16 144/ - AND IN THE IMMEDIATE PRECEDING YEARS THESE INVESTMENTS WERE FOR RS.6 28 97 192/ - . THE DETAILS OF PURCHASE AND SALE AND PERIOD OF 5 HOLDING OF MUTUAL FUND AND SHARES ARE ANALYSED. THE TOTAL PURCHASE TRANSACTIONS DONE BY THE ASSESSEE IN UNITS DURING THE YEAR ARE ABOUT 50 IN TWELVE SCHEMES AND SALES TRANSACTIONS ARE 48 IN FOURTEEN SCHEMES OF VARIOUS MUTUAL FUNDS WHICH COMES TO ONE TRANSACTION IN A WEEK ONLY AND CANNOT BE CONSIDERED TO HAVE DONE WITH T HE INTENTION OF ANY TRADING IN SHARES OR UNITS OF MUTUAL FUNDS. ALTHOUGH THERE IS NO SPECIFIC NUMBER OF DAYS MENTIONED IN THE CBDT CIRCULAR TO BE QUALIFIED AS INVESTMENT IN A VERY GENERAL APPROACH IT CAN BE SEEN THAT OUT OF TOTAL 88 TRANSACTIONS ONLY IN 8 CASES PERIOD OF HOLDING IS LESS THAN 10 DAYS. THE FACT THAT THE SHORT TERM CAPITAL GAIN DECLARED OF RS.70 20 731/ - IS 95% OF THE TOTAL CAPITAL GAINS OF RS. 74 67 587/ - CANNOT BE A GROUND TO ASSESS THE CAPITAL GAIN AS BUSINESS INCOME WHEN THERE IS NO REGULAR TRADING OF THESE SHARES AND MUTUAL FUNDS AND MORE SO WHEN THESE ARE PART OF THE INVESTMENTS SOLD BY THE APPELLANT DURING THE YEAR UNDER CONSIDERATION. APPELLANT HAS SHOWN THESE INVESTMENTS AT COST PRICE AS CAPITAL ASSETS. THE TRANSACTIONS DONE AR E ALSO NOT REGULAR AND SUBSTANTIA0'HE JUDGMENT AND THE BOARD CIRCULAR RELIED UPON BY THE AO RATHER SUPPORTS THE CASE OF THE APPELLANT. HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. GOPAL PUROHIT (2011) 336 ITR 287 HELD THAT 'ASSESSEE IS ENGAGED IN TWO DIFFERENT TYPES OF TRANSACTIONS NAMELY INVESTMENT IN SHARES AND DEALING IN SHARES FOR THE PURPOSES OF BUSINESS AND HELD THAT THE DELIVERY BASED TRANSACTIONS ARE TO BE TREATED AS INVESTMENT TRANSACTIONS AND THE PROFIT RECEIVED THEREFROM IS TO BE TREATE D AS SHORT TERM OR LONG TERM CAPITAL GAIN DEPENDING ON THE PERIOD OF HOLDING OF SHARES AND THAT THERE OUGHT TO BEE UNIFORMITY IN TREATMENT AND CONSISTENCY IN VARIOUS YEARS WHEN THE FACTS AND CIRCUMSTANCES ARE 6 IDENTICAL. N HON'BLE ITAT MUMBAI IN THE CASE OF MANAGEMENT STRUCTURE & SYSTEMS (P) LIMITED VS. INCOME TAX OFFICER 41 DTR (MUMBAI) (TRIB) 426 HELD 'ASSESSEE TREATED THE ENTIRE INVESTMENT IN SHARES AS AN INVESTMENT ONLY AND NOT AS STOCK IN - TRADE DID NOT BORROW MONEY FOR INVESTMENT AND TRANSACTIONS WERE COMPLETED WITH DELIVERY AND THEREFORE ENTIRE INCOME FROM THE SALE AND PURCHASE OF THE SHARES OF ASSESSEE IS TO BE ASSESSED UNDER THE HEAD 'CAPITAL GAIN' ESPECIALLY WHEN SAME POSITION WAS ACCEPTED IN PAST SEVERAL YEARS.' APPELLANT'S CASE IS SQUARELY COVE RED BY THE JUDGMENT OF HON'BLE ITAT HELD IN BOMBAY GYMKHANA LTD. VS. ITO (2009) 27 SOT 58 (MUM) URO. WHEREIN ALSO ASSESSEE SOLD CERTAIN UNITS OF MUTUAL FUNDS AND OFFERED A PART OF INCOME ARISING THEREFROM AS LONG - TERM CAPITAL GAIN AND BALANCE AS SHORT - TER M CAPITAL GAIN. ASSESSEE ALSO CLAIMED SET - OFF OF BROUGHT FORWARD CAPITAL LOSS AGAINST LONG - TERM CAPITAL GAIN. AO ON THE BASIS OF MAGNITUDE AND NUMBER OF TRANSACTIONS OF SALE AND PURCHASE OF UNITS HELD THAT ASSESSEE WAS IN BUSINESS OF BUYING AND SELLING UN ITS AND THUS INCOME ARISING THEREFROM WAS TAXED AS BUSINESS INCOME. LD. COMMISSIONER (APPEALS) UPHELD THE ORDER OF AO. HOWEVER HON'BLE I TAT HELD THAT PURCHASE OF UNITS WAS SHOWN BY ASSESSEE IN ITS BOOKS OF ACCOUNT AS INVESTMENT AND SAID STAND OF ASSESS EE WAS ACCEPTED BY DEPARTMENT. IT WAS HELD THAT WHEN PURCHASE OF UNITS WAS ACCEPTED AS PURCHASE IN COURSE OF INVESTMENT AT THE TIME OF SALE THEREOF INCOME ARISING ON SALE HAD TO BE ASSESSED AS CAPITAL GAIN AND IT COULD NOT BE ASSESSED AS BUSINESS INCOME MERELY FOR REASON THAT QUANTUM WAS HIGH OR NUMBER OF TRANSACTIONS WERE HIGH. 7 THE JUDICIAL PRONOUNCEMENTS DISCUSSED ABOVE CLEARLY INDICATES THAT (I) WHETHER PARTICULAR TRADING IS FROM 'INVESTMENT ON CAPITAL ASSET' OR FROM 'STOCK IN TRADE' IS A QUESTION OF FACT. (II) THE FACT DEPENDS ON HOW IT IS RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND WHAT IS THE ACCOUNTING TREATMENT GIVEN TO IT. (III) MAGNITUDE OF TRANSACTION IS NOT RELEVANT TO THE ISSUE. (IV) PRINCIPLE OF CONSISTENCY IS TO BE FOLLOWED ON THIS ISSUE. RESPECTFULLY FOLLOWING THE ABOVE JUDGMENTS OF THE HIGHER COU R TS AND AFTER CONSIDERING THE FACTS OF THE CASE AS DISCUSSED ABOVE I DO NOT FIND ANY REASON TO HOLD THAT THE SHORT TERM CAPITAL GAIN O R LONG TERM CAPITAL GAIN AS DECLARED BY THE APPELLANT SHOULD NOT BE ASSESSED UNDER THESE HEADS OF INCOME. THEREFORE THE AO IS DIRECTED TO ASSESS THE SAME AS DECLARED BY APPELLANT. THESE GROUNDS OF APPEAL ARE DECIDED IN FAVOUR OF THE APPELLANT. 6. THE L D.SR.D.R. COULD NOT DISPUTE THESE FACTUAL FINDINGS. T HUS WE APPLY THE FOLLOWING JUDGEMENTS OF THE HON BLE DELHI HIGH COURT TO THE FACTS OF THIS CASE. (1) CIT VS. AMIT JAIN DELHI HIGH COURT JUDGEMENT DT. 03.03.2015 IN ITA NO.517/2012 (374 ITR 550) WHEREIN IT WAS HELD AS FOLLOWS. 8. THE FACTORS WHICH COURTS AND TRIBUNALS HAVE TO TAKE INTO CONSIDERATION WHILST DECIDING WHETHER INCOME GAINED DURING A PARTICULAR PERIOD IS BUSINESS INCOME THROUGH PURCHASE AND SALE OF SHARES OR OTHER TRADABLE CAPITAL ASSETS OR CAPITAL GAINS ON ACCOUNT OF SALE OF SUCH ASSETS HAS BEEN SPELT OUT AND REITERATED IN A NUMBER OF DECISIONS. THESE INCLUDE RAJA BAHADUR VISHESHWAR SINGH V. CIT (1961) 41 ITR 685 (SC); COMMISSIONER OF INCOME TAX U.P V. MADAN GOPAL RADHEY LAL [1969] 73 ITR 652 (SC); COMMISSIONER OF INCOME TAX V ASSOCIATED INDUSTRIAL DEVELOPMENT COMPANY 82 ITR 586 (SC); P.M. MOHAMMED MEERAKHAN V. COMMISSIONER OF INCOME - TAX KERALA 73 ITR 735 (S.C.) AND COMMISSIONER OF INCOME TAX 8 V NSS INVESTMENTS LTD 2007 (277) ITR 149 (MAD). IT WAS IN THE LIGHT OF THESE DECISIONS THAT THE CBDT CIRCULAR NO. 4/2007 WAS ISSUED INDICATING THE PRINCIPLES APPLICABLE IN THIS REGARD. THESE CRITERIA ARE: ITA517 - 12 PAGE 6 (1) INTENTION OF THE ASSESSEE AT THE TIME OF PURCHASE OF THE SHARES. THIS CAN BE FOUND OUT FROM THE TREATMENT GIVEN TO THE PURCHASE IN THE ASSESSEE'S BOOKS OF ACCOUNT. (2) DID THE ASSESSEE BORROW MONEY TO PURCHASE THE SHARES AND PAID INTEREST FOR IT. MONEY IS GENERALLY BORROWED TO PURCHASE GOODS FOR THE PURPOSES OF TRADE AND NOT FOR INVESTING IN AN ASSET FOR RETAINING. (3) VOLUME AND FREQUENCY OF THE PURCHASES AND SALE/DISPOSALS. IF PURCHASE AND SALES ARE FREQUENT OR THERE ARE SUBSTANTIAL TRANSACTIONS IN AN ITEM THAT CAN INDICATE TRADE. HABITUAL DEALING IN A PARTICULAR ITEM IS INDICATIVE OF INTENTION OF TRADE. LIKEWISE RATIO BETWEEN THE PURCHASES AND SALES A ND THE HOLDINGS MAY SHOW WHETHER THE ASSESSEE IS TRADING OR INVESTING (HIGH TRANSACTIONS AND LOW HOLDINGS INDICATE TRADE WHEREAS LOW TRANSACTIONS AND HIGH HOLDINGS INDICATE INVESTMENT). ANOTHER RELATED FACTOR IS THE DURATION FOR WHICH THE SHARES ARE HELD. (4) WAS THE PURCHASE AND SALE MADE FOR REALIZING PROFIT OR FOR RETENTION AND APPRECIATION IN ITS VALUE. THE FORMER INDICATES THE PURCHASES BEING PART OF TRADE; AND THE LATTER IS INDICATIVE OF THE PURCHASES BEING AN INVESTMENT. FURTHERMORE IT WOULD BE REL EVANT TO ASK WHETHER THE INTENTION BEHIND THE PURCHASE WAS TO ENJOY DIVIDEND OR MERELY TO EARN PROFIT ON SALE OF SHARES. IMPORTANTLY A COMMERCIAL MOTIVE IS AN ESSENTIAL INGREDIENT OF TRADE IN THIS CONTEXT. (5) WHETHER THE ITEMS IN QUESTION WERE VALUED AT COST. IF SO IT WOULD INDICATE THAT THEY WERE INVESTMENTS. WHERE THEY WERE ITA517 - 12 PAGE 7 VALUED AT COST OR MARKET VALUE OR NET REALIZABLE VALUE WHICHEVER IS LESS IT WILL INDICATE THAT ITEMS WERE TREATED AS STOCK - IN - TRADE. (6) FINALLY IT WOULD BE REL EVANT TO CONSIDER HOW THE ASSESSEE IS AUTHORIZED IN ITS MEMORANDUM / ARTICLES. IN THE PRESENT CASE THERE IS NO DISPUTE THAT THE OPENING INVESTMENT COST FOR THE RELEVANT YEAR AY 2006 - 07 WAS RS.2.60 CRORES; THE CORRESPONDING CLOSING VALUE WAS RS.4.70 CRORES . FURTHERMORE THE COURT NOTICES THAT THE ASSESSEE DERIVED IN ADDITION TO THE SHORT TERM CAPITAL GAINS DIVIDEND INCOME TO THE TUNE OF NEARLY RS.10 LAKHS. THE AUTHORITIES HAVE ALL EMPHASISED THAT EVEN WHILE SEEING THE CUMULATIVE EFFECT OF THE TESTS IN TH E GIVEN FACTS OF A CASE ONE TEST MIGHT BE DETERMINATIVE OR CONCLUSIVE. AT THE SAME TIME NO SINGLE TEST HAVING REGARD TO THE FACTS OF A CASE AND A CUMULATIVE EFFECT THEREOF NEED BE DETERMINATIVE OR CONCLUSIVE. IN THE PRESENT INSTANCE WHAT IS APPARENT IS THAT THE ASSESSEE AN INDIVIDUAL DID NOT BORROW ANY FUNDS; THE SHARE SCRIPTS TRADED WERE ONLY FROM AMONGST 9 WHAT WERE HELD BY HIM. SIGNIFICANTLY DIVIDEND INCOME AMOUNTING TO ABOUT 4% OF THE VALUE OF THE INVESTMENT WAS EARNED BY THE ASSESSEE. WHAT APPEARS TO HAVE WEIGHED ALMOST CONCLUSIVELY WITH THE TAX AUTHORITIES IN THE FIRST AND SECOND INSTANCE IS THE VALUE AND FREQUENCY OF THE TRANSACTIONS. AS UNDERLINED BY US THAT FACTOR ALONE CANNOT BE CONCLUSIVE AND WOULD HAVE TO BE WEIGHED ALONG WITH THE TOTALITY O F FACTS. AN IMPORTANT DETAIL WHICH CANNOT BE OVERLOOKED BY THE COURT IS THAT IN ALL PAST PERIODS AND EVEN SUBSEQUENT PERIODS SIMILAR INCOME REPORTED BY THE ASSESSEE WAS ACCEPTED BY THE REVENUE AS SHORT TERM CAPITAL GAIN. IN ITA517 - 12 PAGE 8 FACT FOR AY 20 05 - 06 THE SCRUTINY ASSESSMENT UNDER SECTION 143 (3) ACCEPTED THE SUM OF RS.1.02 CRORES AS SHORT TERM CAPITAL GAIN. IN THE CIRCUMSTANCES IT WAS ALL THE MORE NECESSARY FOR THE REVENUE TO POINT TO SOME UNIQ UE FEATURE OR DISTINCTIVE MATERIAL TO DIFFERENTIATE THE ASSESSEE'S ACTIVITIES FOR THE SUBJECT ASSESSMENT YEAR SINCE THEY FUNDAMENTALLY REMAINED THE SAME AND UNCHANGED. 9. ON AN APPROPRIATE APPLICATION OF THE AUTHORITIES THIS COURT IS OF THE OPINION THAT THE ITAT'S FINDINGS AND VIEW CANNOT BE FAULTED IN THE CIRCUMSTANCES OF THE CASE. THE QUESTION OF LAW IS THEREFORE ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THE APPEAL IS ACCORDINGLY REJECTED. (2) WE ALSO PLACE RELIANCE ON THE JUDGEMENT OF HONBL DELHI HIGH COURT IN THE CASE OF CIT VS. ROHIT ANAND 327 ITR 445 (DEL.). 7. RESPECTFULLY FOLLOWING THE JUDGEMENT WE UPHOLD THE ORDER OF THE FIRST APPELLATE AUTHORITY AND DISMISS THIS APPEAL OF THE REVENUE. 8 . IN THE RESULT THE APPEAL BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 2 9 T H SEPTEMBER 2016. S D / - S D / - (SUDHANSHU SRIVASTAVA) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 2 9 T H SEPTEMBER 2016 M ANGA 10 COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ITAT - TRUE COPY - BY ORDER ASSISTANT REGISTRAR