TaxTMI 
TaxTMI 
2013 (8) TMI 401
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....STCG) returned by the assessee. The ld. AR would submit that the matter is to be treated as 'covered' in view of the assessment orders passed u/s. 143(3) of the Act in its case for the immediately preceding years, being A.Ys. 2004-05 to 2007-08, in which the Assessing Officer (A.O.) has accepted the assessee's claim of STCG, adverting our attention to the copies thereof placed on record (PB/pgs.16-28). In fact, these orders were passed in the second round, i.e., on the matter having been set aside by the Tribunal back to the file of the A.O. for a fresh adjudication on this issue. The consolidated order dated 31.01.2012 by the tribunal for the relevant years is also placed on record (PB pgs.1-15). Both the A.O. as well as the ld. CIT(A) vide their respective orders in the instant case have in fact relied on the assessments for the said years as originally made, which would clarify that there is no change in the facts and circumstances of the case for the current year, i.e., with reference to that obtaining for the said years. The speculation profit earned by the assessee, i.e., in respect of non delivery based transactions, at Rs. 5.78 lacs, has been duly returned by th....
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.... of the hearing itself, that we are not in disagreement with and, rather, endorse the order by the tribunal in the case of Hitesh S. Bhagat (supra). An investor in one year could well become a trader in the subsequent year and vice-versa. In fact, he could act as both as a trader or as an investor for any of the years. The matter is purely factual, and no inference one way or other would automatically arise out of the findings of the fact by the assessing authority, who is not bound by his order for an earlier year/s, for any other year. This we also find to be sum and substance of the order by the tribunal in the case of Hitesh S. Bhagat (supra), which stood decided by the tribunal by issuing specific findings of fact, as apparent from a reading of its order. This position of law is well-settled, as amply clarified by the tribunal with reference to a host of decisions by the apex court, per its decisions in the case of Addl. CIT vs. Rohit Kothari [2013] 35 CCH 084 (Mum) and Asst. CIT vs. Dolly K. Vajifdar (in ITA No.3867/Mum/2011 dated 08.03.2013). In fact, in the assessee's own case for the earlier years, i.e., A.Ys. 2004-05 to 2007-08, vide its order dated 31.01.2012 referre....
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....ves drawn support from the assessment for the earlier years, implying the facts to be the same. No separate case, by analyzing the facts for this year has been made out by the authorities below. As such, we find substance in the averments by the ld. AR, notwithstanding the legal position in the matter as clarified by the tribunal in its cases referred to supra, so that we would be inclined to accept his contentions. 4.3 Again, however, it is observed that the tribunal, while deciding the Revenue's appeal for the current year, agitating the treatment of the income on sale of shares returned as Long Term Capital Gain (LTCG) as such by the first appellate authority, vide its order dated 05.04.2013 (in ITA No.1590/Mum/2012/copy on record), in view of the decision by the tribunal for the earlier years relied upon by the ld. AR, restored the matter back to the file of the A.O. for a de novo adjudication, holding as under, on a similar reliance, i.e., on the tribunal's order for the earlier years being placed:- "4. Under the circumstances, we only consider it fit and proper, as well as for the uniformity of procedure and consistency, that the impugned assessment is set aside on ....
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.... cannot be assailed, de hors the facts of the case. We say so as the total expenditure incurred by the assessee during the relevant year, as per its profit and loss account, forming part of its return of income for the year (refer PB/pgs.30-33), is at Rs. 5,79,692/-. How could then, we wonder, a disallowance be made at a higher sum of Rs. 6,52,086/-, i.e., even if the entire expenditure is considered as having been incurred in relation to the dividend income and none of it as against the business income? Further, no disallowance qua the interest expenditure stood made by the A.O.; the assessee having not incurred any interest expenditure; rather returned a positive interest income of Rs. 1,22,380/-, and which, as apparent from the computation of the income, is the gross and not the net interest earned by her. Reference, therefore, by the ld. CIT(A) to the assessee having not produced the cash flow statement, proving the nexus of the borrowed funds with her business activities, is unwarranted and de hors the facts of the case. We, again, express our displeasure over conduct by the representatives of both the sides in not bringing the relevant facts to our notice during hearing. In f....