2016 (1) TMI 253

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....dingly statutory notices were issued and served upon the assessee. 3. While scrutinising the return of income the AO noticed that the assessee has offered income under the head 'Capital Gains'. The assessee was asked to furnish reasons as to why the income from short term capital gains should not be treated as 'Income from Business'. Vide a letter dated 11.12.10, the assessee strongly contended that he has been showing investment in shares and in units of mutual funds for the last so many years and has been consistently offering gains under the head 'Short Term Capital Gains'. The claim of the assessee did not find any favour with the AO who was of the strong belief that principles of res adjudicata do not apply on tax proceedings. Further....

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....at considering the past history of the assessee the claim of STCG/LTCG should be accepted. 6. We have carefully considered the orders of the authorities below. We have also gone through the relevant documentary evidences brought on record before us. There is no dispute that in the Assessment Years 2004-05, 2006-07 & 2007-08 the STCG/LTCG have been assessed as such while making the order under section 143(3) of the Act. We also find that the facts and issues before us are identical to the facts considered in earlier assessment years. Therefore, in our considered opinion on identical set of facts when the law has not changed the Revenue Authorities should not take a different view. This is against the rule of consistency as laid down by the ....

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....485/2012 dated 25.04.14. The concluding part of the Hon'ble High Court reads as under: "This court is thus of the opinion that the Ld. ITAT erred in holding the transactions to be income from business and profession. The order of the ITAT is consequently set aside and the appeal is answered in favour of the assessee" 10. As mentioned elsewhere since the finding of the Ld. CIT(A) is based on the decision of the Tribunal and since the decision of the Tribunal has been reversed by the Hon'ble High Court, respectfully following the decision of the Hon'ble High Court of Delhi (supra), we direct the AO to treat the gains under the head 'STCG/LTCG'. Ground No.2 is accordingly allowed. 11. Ground No.3 relates to the additions made by the AO by....

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....ral land and is within the exemption clause of the definition of capital asset. Per contra, The Ld. D.R. has strongly supported the findings of the lower authorities. 14. We have carefully considered the orders of the authorities below. We have also gone through the provisions of section 2(14)(iii)(a) of the Act as it stood during the assessment year under consideration and which reads as under: "14(iii) agricultural land in India, not being land situate- (a) in any area which is comprised within the jurisdiction of a municipality (whether known as a municipality, municipal corporation, notified area committee, town area committee, town committee, or by any other name) or a cantonment board and which has a population of not less than ....