Law:

Section:

Section 45, read with section 28(i) of the Income-tax Act, 1961 - Capital gains - Chargeable as - Whether where Tribunal had a pure finding of fact that assessee was engaged in two different types of transactions, first set of transactions involving investment in shares and second set of transactions involving dealing in shares (without delivery) for purposes of business, it had correctly held that delivery-based transactions should be treated as those in nature of investment transactions and profit received therefrom should be treated either as short-term or as long-term capital gain, depending upon period of holding and profit from other transactions should be treated as business income - Held, yes Section 143 of the Income-tax Act, 1961 - Assessment - General - Whether though principle of res judicata is not applicable to assessment proceedings, yet there ought to be uniformity in treatment and consistency when facts and circumstances are identical - Held, yes Section 4, read with section 145 of the Income-tax Act, 1961 - Income -Chargeable As - Whether though entries in books of account alone are not conclusive proof to decide income, yet presentation in books of account is most crucial source of gathering intention of assessee as regards nature of transaction - Held, yes Ms. Suchitra Kamble for the Appellant. S.C. Tiwari and R. Asokan for the Respondent. ORDER 1. The following questions of law have been formulated in the appeal filed by the revenue against the judgment of the Income-tax Appellate Tribunal, dated 10-2-2009 : "(a)Whether, on the facts and circumstances of the case and in law, the Hon'ble ITAT was justified in treating the income from sale of 7,59,003 shares for Rs. 5,00,12,879 as an income from short-term capital gain and sale of 3,88,797 shares for Rs. 6,65,02,340 as long-term capital gain as against the "Income from business" assessed by the Assessing Officer? (b)Whether, on the facts and circumstances of the case and in law, the Hon'ble ITAT was justified in holding that principle of consistency must be applied here as authorities did not treat the assessee as a share trader in preceding year, in spite of existence of similar transaction,…

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