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of <h1>Delivery-based share sales deemed investment transactions; profits taxed as capital gains, not business income; res judicata limited.</h1> <h3>The Commissioner of Income Tax Versus Gopal Purohit</h3> HC upheld the ITAT's finding that delivery-based share transactions were investment transactions, so profits qualify as capital gains (short- or long-term ... Nature of Income - Business Income Versus Capital Income - sale of shares - ITAT decided that income from sale of shares as long term capital gain as against the Income from business - Principle of consistency - HELD THAT:- Delivery based transactions in the present case, should be treated as those in the nature of investment transactions and the profit received therefrom should be treated either as short term or, as the case may be, long term capital gain, depending upon the period of the holding. A finding of fact has been arrived at by the Tribunal as regards the existence of two distinct types of transactions namely, those by way of investment on one hand and those for the purposes of business on the other hand. - that the principle of res judicata is not attracted since each assessment year is separate in itself. - there cannot be any dispute about the basic proposition that entries in the books of account alone are not conclusive in determining the nature of income Issues:1. Classification of income from sale of shares as capital gain or business income.2. Application of principle of consistency in assessing nature of transactions.3. Reliance on entries in books of account to determine nature of income.Analysis:1. The primary issue in this case revolved around the classification of income derived from the sale of shares as either short-term or long-term capital gain or as business income. The Tribunal found that the assessee was engaged in two distinct types of transactions: one involving investment in shares and the other involving business activities of dealing in shares without delivery. The Tribunal correctly applied the principle that an assessee can maintain separate portfolios for investment and business activities, determining the nature of income based on the holding period. The Tribunal's factual findings supported the treatment of delivery-based transactions as investment transactions, leading to capital gains taxation based on the holding period. The Court found no substantial question of law in this regard.2. Regarding the application of the principle of consistency, the Tribunal noted the assessee's consistent practice in activities, record-keeping, and presentation of shares as investments over the years. The revenue argued for a different approach in the current assessment year, citing the inapplicability of res judicata in tax assessments. However, the Tribunal rightly emphasized uniformity and consistency in treatment when facts are identical, especially for the same assessee. The Court upheld the Tribunal's decision, emphasizing the separate nature of each assessment year and the need for consistent treatment in similar circumstances. No substantial question of law arose from this issue.3. The final issue concerned the reliance on entries in the books of account to determine the nature of income. The Tribunal correctly acknowledged that book entries alone are not conclusive evidence of income nature. The Court agreed with the Tribunal's application of this principle in the case at hand, indicating that no interference was warranted in an appeal under Section 260A. As such, the Court found no substantial legal question raised by this issue and dismissed the appeal accordingly.
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