2019 (8) TMI 231

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....6) for AY 2008-09. In Part-I, herein- below, we mention the contentions of the Ld. counsel for the applicant, in Part-II, the submissions of the Ld. DR and in Part-III, the reasons for our decision. I 2. The contentions of the Ld. counsel follow the written submission dated 28.02.2019 filed by the applicant before the Tribunal. Therefore, we refer below the said written submission. It is submitted that the ITAT while adjudicating the ground No. 1 (AY 2006-07) against the appellant have at page No. 8 to 11 at para No. 7.1 referred and discussed the case laws relied upon by the assessee, however, not considered the propositions laid down therein in light of the facts of the case while drawing the conclusion. It is stated that the ITA....

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....e judgment of Gopal Purohit referred/furnished by the appellant. The Ld. counsel submits that the rule of uniformity in treatment and consistency of the appellant ought to have been followed considering the facts that in appellant's own case, with identical facts of repetitive transactions, the income from sale of shares have been treated as 'capital gains' and not 'business income' namely (i) AY 2007- 08 : (a) order u/s 143(3) dated 16.12.2009 passed by the Assessing Officer accepting the STCG with repetitive transactions as 'Capital Gains', (b) order u/s 153A r.w.s. 143(3) dated 30.03.2014 passed by the same Assessing Officer treating the STCG as 'business income'. The CIT(A) allowed the appeal and the Department appeal was dismissed b....

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....137 (SC) and Sanakarlinga v. CIT 4 ITC 226, 241 (FB), we observed that the doctrine of res judicata or estoppel by record does not apply to AO's decisions. A finding or decision of the income tax authorities in one year may be departed from in a subsequent year. For AY 2006-07 we found that there are repetitive transactions of purchase and sale by the assessee in the scripts of Bharati Shipyard and Sah Petro. The details are as under : Sr. No. Name of the company No. of shares Date of purchase Dale of sale Book Gains (Rs.) 1 Bharati Shipyard 1700 19.09.2005 28.09.2005 8410 2 Bharati Shipyard 3300 19.09.2005 23.12.2005 -72422 3 Bharati Shipyard 2700 01.09.2005 23.12.2005....

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.... 5,636 4. Great Offshore Ltd 50 29.05.2007 18.06.2007 3639 5 Great Offshore Ltd. 200 30.05.2007 27.06.2007 12,267 6 Great Offshore Ltd. 800 30.06.2007 06.09.2007 55,524 7 Orbitco 2000 25.04 2007 30.05.2007 131,064 e Orbitco 1000 25.04.2007 22.06.2007 77,534 9 Orbit Corp 1000 09.08.2007 06.09.2007 39,610 10 JSW Steel Ltd. 500 01.07.2007 10.07.2007 11,921 11 JSW Steel Ltd. 500 21.08.2007 03.10.2007 132,702 12 JSW Steel Ltd. 750 21.08.2007 10.10.2007 203,932 13 Sesa Goa Ltd. 250 27.08.2007 29.08.2007 26,296 14 Sesa Goa Ltd. 250 27.08.2007 03.10.2007....

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....error in the impugned order has been pointed out by the applicant. What the applicant wants is a review of the order passed by the Tribunal. The Tribunal is a creature of the statute. The Tribunal cannot review its own decision unless it is permitted to do so by the statute. The Hon'ble Supreme Court has held in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji [AIR 1970 SC 1273] that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. It is a settled law that the Tribunal has no power to review its order in the garb of section 254(2) of the Act as held in CIT v. Globe Transport Corpn. [1992] 195 ITR 311 (Raj) (HC), CIT v. Roop Narain Sardar Mal [2004] 267 ITR 601 ....