Treaty exemption for share sale gains follows earlier year ruling where identical facts and no distinguishing feature were shown.

Where a tax treaty issue had already been decided in the assessee's own case on identical facts, the Tribunal followed that earlier view and held that capital gains from sale of shares and related foreign exchange transactions were not taxable in India under the India-Spain DTAA. The Revenue's reliance on Article 14(4) did not justify a different result because no distinguishing feature was shown, and the same treaty exemption under Article 14(6) applied for the year under consideration. The exemption was therefore accepted, the addition was not sustained, and the assessee's loss treatment remained intact.

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Issues: Whether the income or loss arising from sale of shares and foreign exchange transactions was taxable in India under Article 14(4) of the India-Spain Double Taxation Avoidance Agreement or exempt under Article 14(6) of that Agreement.

Analysis: The issue was already decided in the assessee's own case for earlier assessment years, where the Tribunal had upheld the view that capital gains from sale of such shares were not taxable in India under the treaty. The same reasoning applied in the year under consideration, and the assessee had also suffered a loss. The Tribunal found no reason to take a different view merely because the Revenue attempted to rely on Article 14(4), and it also noted that denying the loss benefit while treating the transaction as taxable would be unjust.

Conclusion: The claim of exemption under Article 14(6) was accepted and the Revenue's challenge failed.

Final Conclusion: The addition was not sustained and the Revenue's appeal was dismissed, leaving the assessee's treaty-based exemption intact.

Ratio Decidendi: Where an issue under a tax treaty has already been decided in the assessee's own case on identical facts, and the treaty provision grants exemption, the same view should ordinarily be followed for the subsequent year absent a distinguishing feature.

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