Case Law Details
The ld. Counsel for the assessee has furnished before us the details of transactions in shares made by the assessee in the year under consideration as well as in the immediately preceding year i.e. A.Y. 2006-07 to show that the nature of transactions including their frequency, holding period etc was similar in both these years. He has invited our attention to the copy of Assessment Order passed by the AO for A.Y.2006-07 to show that the claim of the assessee for Short Term Capital Gain amounting to 25,67,008/- on sale of shares in the identical facts and circumstances was accepted by the AO in the said assessment completed u/s 143(3). He has also invited our attention to the copy of Assessment Order passed by the AO u/s 143(3) for A.Y.2004-05 to show that the similar claim of the assessee for Short Term Capital Gain on sale of shares amounting to Rs.30,70,381/- was accepted by the AO in the identical facts and circumstances. A perusal of these two Assessment Orders passed by the AO u/s 143(3) of the Act for the A.Y. 2004-05 and 2006-07 clearly shows that the claim of the assessee for Short Term Capital Gain on sale of shares was accepted by the AO in the facts and circumstances, which are similar to the year under consideration i.e. A.Y. 2007-08 and this position is not disputed by the ld. DR at the time of hearing before us.
In the case of CIT v/s Gopal Purohit [2011] 336 ITR 287 (Bom), it was held by the Hon’ble Bombay High Court, while dealing with the similar issue, that it was open to the assessee to maintain two separate portfolios, one relating to investment in shares and another relating to business of dealing in shares. It was also held that there should be uniformity in treatment given to such transactions in shares and the rule of consistency should be followed when facts and circumstances for different years are identical, particularly in the case of same assessee. In our opinion, the ratio of the decision of the Hon’ble Bombay High Court in the case of Gopal Purohit(supra) is squarely applicable in the facts and circumstances of the present case and respectfully following the same, we direct the Assessing Officer to accept the claim of the assessee for Short Term Capital Gain of Rs.6,13,016/- on sale of shares. Ground no.1 of the assessee’s appeal is accordingly allowed.
