Sh. Sanjeev Bajaj, Ludhiana V. DCIT, Ludhiana

ITA 184/CHANDI/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86188 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-01-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 15-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: S K MUKHI
• Keywords: Business income; Rule of consistency; Additional evidence; Reasonable cause
• Section: 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R. SOOD, ACCOUNTANT MEMBER ITA NO. 184/CHD/2012 ASSESSMENT YEAR: 2008-09 SH. SANJEEV BAJAJ VS. THE DCIT PROP. M/S NEEL KANTH COMMODITIES CIRCLE III SERVICES, 104 KITCHLU NAGAR LUDHIANA LUDHIANA PAN NO. ABFPB1331F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. S.K. MUKHI RESPONDENT BY : SHRI. MANJIT SINGH DATE OF HEARING : 22/01/2015 DATE OF PRONOUNCEMENT : 06/02/2015 ORDER PER T.R.SOOD, A.M. THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 05/01/2012 PASSED BY THE CIT(A)-I, LUDHIANA. 2. IN THIS APPEAL ASSESSEE HAS RAISED THE FOLLOWING GROUNDS I. THAT THE LD. DY CIT HAS ERRED IN LAW AND ANNOUNCED THE ORDER AGAINST THE FACTS THAT CASE. II. THAT THE LD. DY CIT-II HAS IGNORED THE FACTS TH AT ALL THE NECESSARY INFORMATION REGARDING THE CASE WAS PROVIDED DURING THE COURSE O F PROCEEDINGS AND HAS ERRED IN MAKING AN ADDITION OF RS. 30,40,620/-. III. THAT THE LD. CIT(A)-II HAS IGNORED THE FACT TH AT A.O. NEVER VERIFIED THE FACT AND MADE AN ADDITION AS THEY HAD CONSTRAINT OF TIME AND THE ASSESSMENT HAD TO BE COMPLETED ON OR BEFORE 31.12.2010 AND SIMPLY GONE O N TEST CHECK BASIS ON MAKING AN ADDITION TO THE TUNE OF RS. 30,40,620/-. IV. THAT THE LD. DY CIT-III / A.O. WAS WRONG AND AG AINST THE FACTS OF THE CASE AND WRONGLY MADE AN ADDITION REFLECTED AS INCOME FROM S HORT TERM CAPITAL GAINS AND LONG TERM CAPITAL GAINS AND WRONGLY TREATED THE SAME AS BUSINESS INCOME OF THE ASSESSEE. 2 3. GROUND NO. 1 IS OF GENERAL NATURE AND DOES NOT R EQUIRE SEPARATE RECTIFICATION. GROUND NO. 2 & 3 4. AFTER HEARING BOTH THE PARTIES WE FIND THAT DURI NG THE ASSESSMENT PROCEEDINGS IT WAS NOTICED THAT ASSESSEE DEPOSITED CASH IN THE BANK AND THEREFORE ASSESSEE WAS ASKED TO JUSTIFY THE SOURCE OF CASH. INITIALLY VARIOUS ADJOURNMENTS WERE TAKEN AND AFTER THESE ADJOURNMENT S ULTIMATELY ASSESSEE VIDE REPLY DATED 24/12/2010 AS UNDER: THE ASSESSEE HAS DEPOSITED THE CASH INTO BANK OUT OF THE RECEIPT OF CASH FROM CUSTOMERS IN THE ORDINARY COURSE OF BUSINESS. THE DETAIL OF THE CUSTOMERS GIVING THE COMPLETE DET AILS OF THEIR NAME, ADDRESS & PAN NUMBERS IS GIVEN IN THE LEDGER ACCOUNTS ATTACHE D HEREWITH. SINCE THE ASSESSEE HAS GIVEN THE COMPLETE DETAILS O F THE CASH RECEIVED HENCE THE PROVISIONS OF SECTION 69 OF THE INCOME TAX ACT DOES NOT APPLY. THE NAME OF THE PERSONS WHO THE ASSESSEE CLAIMS HAV E GIVEN THE CASH TO HIM AS SUBMITTED BY THE ASSESSEE IS AS UNDER: SL.NO. NAME OF THE PERSON AMOUNT 1. VIDYA 109000 2. KARNIKA MALHOTRA 91000 3. REETA RANI 178400 4. NALINI BHARDWAJ 90000 5. SURESH KUMAR 83600 6. SONU DAWAR 90435 7. SACHIN 181900 8. CHAMAN LAL 92970 9. SANJEEV BHALLA 89150 10. NIKHINDER JAIN 77100 11. MEENAKSHI 97800 12. VIKAS JAIN 108250 13. ANITA PURI 110540 14. CHAMAN LAL 77250 15. ANUPAM CHAWLA 107500 16. RAJESH GUPTA 176875 17. VIKAS 141500 18. RAJ PAUL 88250 19. AMIT BAJAJ 102000 20. GAURAJ BAJAJ 97850 21. MONIKA 212150 22. PARDEEP 105600 23. RAJESH MALHOTRA 90500 24. SIDJOR SHARMA 70000 25. RAGHAV AGGARWAL 81250 26. NIKHIL ARORA 89250 27. MANOJ KUMAR 200500 TOTAL 30,40,620/- THERE AFTER AO REFERRED TO SECTION 68 AND 69 AND OB SERVED THAT BURDEN IS ON THE ASSESSEE TO EXPLAIN THE SOURCE OF ANY CASH CREDITED IN HIS BOOKS / INVESTMENT MADE BY HIM. FURTHER DUE TO SHORTAGE OF TIME ON THE BASIS OF TEST CHECK SUMMONS WERE ISSUED TO THE FOLLOWING FOUR PERSONS. 3 1. SH. NIKHINDER JAIN 2. SH. RAGHAV AGGARWAL 3. SH. CHAMAN LAL 4. SH. MANOJ KUMAR 5. INSPECTOR OF THE OFFICE WAS DEPUTED TO SERVE THE SE SUMMONS. THE SUMMONS IN CASE OF SHRI. NIKHINDER JAIN AND SHRI. RAGAHAV AGGARWAL WERE RETURNED BY THE INSPECTOR WITH THE REPORT THAT INCA SE OF SHRI. NIKHINDER JAIN THE ADDRESS MENTIONED WAS NOT CORRECT AND THERE WAS NO SUCH HOUSE IN THE LOCALITY AND IN CASE OF SHRI RAGAHAVE AGGARWAL NO SUCH PERSO N WAS LIVING AT SUCH ADDRESS. THE REPORT OF THE INSPECTOR WAS CONFRONTED TO THE ASSESSEE AND IT WAS STATED THAT MAY BE THESE PERSONS HAVE SHIFTED THEIR RESIDENCE. IN CASE OF SHRI. CHAMAN LAL AND SHRI. MANOJ KUMAR WHOM SUMMONS WERE SERVED CLEARLY STATED IN THE EXPLANATION THAT THEY HAVE NOT UNDERTAKEN AN Y BUSINESS TRANSACTIONS WITH M/S NEELKANTH COMMODITIES I.E. ASSESSEE DURING 200 8-09. THE REPLY OF SHRI. CHAMAN LAL AND SHRI. MANOJ KUMAR WERE CONFRONTED TO SH. M.K. MAKKAR COUNSEL OF THE ASSESSEE AND HE WAS PROVIDED AN OPPORTUNITY TO CROSS EXAMINATION OF THESE TWO PERSONS. IN RESPONSE IT WAS STATED THAT S HRI. CHAMAN LAL AND SHRI. MANOJ KUMAR HAVE CONDUCTED BUSINESS BUT MAY BE THEY HAVE NOT SHOWN THE SAME IN THEIR BOOKS THATS WHY THEY HAVE DENIED THE SE TRANSACTIONS. AO FURTHER GAVE AN OPPORTUNITY TO PRODUCE ANY EVIDENCE TO SHOW THAT CASH WAS RECEIVED FROM SHRI. CHAMAN LAL AND SHRI. MANOJ KUMAR BUT NO SUCH EVIDENCE WAS PRODUCED. IN THIS BACKGROUND THE AO REFERRED TO VAR IOUS CASE LAWS WHICH CLEARLY SHOWS THAT ASSESSEE WAS DUTY BOUND TO EXPLAIN THE S OURCE OF CASH WHICH ASSESSEE HAS FAILED TO DO AND THEREFORE AO ADDED TH E SUM OF RS. 30,40,620/- TO THE INCOME OF THE ASSESSEE . 6. ON APPEAL NONE APPEARED BEFORE THE LD. CIT(A) AN D THEREFORE THE LD. CIT(A) CONFIRMED THE ADDITION. 7. BEFORE US ASSESSEE HAS FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE WHICH READS AS UNDER : 1. THAT THE ABOVE MENTIONED APPEAL WAS FILED BY TH E APPELLANT AND IS PENDING FOR HEARING BEFORE THIS HONBLE BENCH ON 21.05.2014. 2. THAT THE APPLICANT/APPELLANT VIDE THIS APPLICATION HUMBLY PRAYS FOR TAKING ON RECORD VARIOUS EVIDENCES WHICH COULD NOT BE PRODUCED BEFORE THE AUTHORITIES BELOW BECAUSE OF UNAVOIDABLE CIRCUMSTAN CES AND BECAUSE OF THE FACT THAT THERE WAS SHORTAGE OF TIME FOR FINALIZING THE ASSESSMENT PROCEEDINGS 4 AND VERIFICATION OF VARIOUS INVESTORS/CLIENTS OF TH E APPELLANT AND ALSO ON THE APRT OF THE APPELLANT WHO WAS NOT GIVEN ENOUGH TIME TO P RODUCE CONFIRMATIONS FROM THE SAID INVESTORS. COPIES ATTACHED AT PAPER BOOK P AGE 74 TO 123. 3. THAT VARIOUS ADDITIONAL EVIDENCES COULD NOT BE PROD UCED DUE TO THE FACT THAT THE FATHER OF THE APPELLANT EXPIRED D URING THE YEAR UNDER CONSIDERATION I.E., ON 23.02.2010. COPY OF DEATH CE RTIFICATE IS ENCLOSED HEREWITH AS ANNEXURE A. 4. ALSO DURING THE PERIOD WHEN THE ASSESSMENT PROCE EDINGS WERE GOING ON THE APPELLANT HAD ANOTHER SET BACK WHEREIN HIS SON MAST ER ABHISHEK BAJAJ SUFFERED FROM ACUTE DIABETES AND THYROID FOR WHICH THE APPEL LANT HAD TO RUN PILLAR TO PILLAR TO GET HIS DISEASE DIAGNOSED AND CURED. COPIES OF H IS SONS MEDICAL CERTIFICATES ARE HEREBY ENCLOSED AS ANNEXURE B. 5. ALSO DUE TO THE ABOVE EXPLAINED FACT, THE APPELL ANT COULD NOT APPEAR BEFORE THE CIT(A) DUE TO DEPRESSION AND CONTINUITY OF MEDI CAL PROBLEM OF HIS SON NOR HE COULD ASSIST HIS COUNSEL SO AS TO ENABLE HIM TO APP EAR BEFORE THE FIRST APPELLATE AUTHORITY. 6. ALSO BY NOT FILLING THE IMPUGNED EVIDENCES WHICH HAVE DIRECT BEARING ON THE FACTS AND CIRCUMSTANCES AND THE ISSUE IN DISPUTE TH E APPELLANT COULD NOT HAVE GAINED ANYTHING. 7. PRAYER: HENCE IN THE LIGHT OF ABOVE FACTS AND CIRCUMSTANCES AND THERE BEING REASONABLE CAUSE FOR NOT PRODUCING OF VARIOUS IMPORTANT DOCUMENTS/EVIDENCES, THE PRESENT APPLICANT/APPELLAN T HUMBLY PRAYETH FOR ALLOWING THE APPELLANT TO PLACE ON RECORD ADDITIONA L EVIDENCES AS PER THE LIST ATTACHED HEREWITH. 8. THE LD. COUNSEL FURTHER SUBMITTED THAT FATHER OF THE ASSESSEE DIED ON 23/02/2010 AND THEREFORE ASSESSEE WAS DISTURBED AND FURTHER ASSESSEES SON WAS ALSO SUFFERING FROM CERTAIN DISEASE DURING THIS PER IOD. IN THIS BACKGROUND HE REFERRED TO VARIOUS DOCUMENTS SHOWING THE DEATH CER TIFICATE FOR THE LATE FATHER AND MEDICAL REPORT FOR THE SON. HE MADE A PRAYER TH AT UNDER THESE CIRCUMSTANCES ASSESSEE WAS PREVENTED FROM FILING TH E EVIDENCE BEFORE THE AO AND THEREFORE SAME SHOULD BE ADMITTED IN THE INTERE ST OF JUSTICE. 9. ON THE OTHER HAND LD. DR OPPOSED THE APPLICATIO N AND SUBMITTED THAT AO HAS GIVEN SUFFICIENT TIME BUT ASSESSEE DID NOT C OMPLY WITH THE SAME. FURTHER ONCE THE ADDITION WAS MADE BY THE AO ASSESSEE SHOUL D HAVE TAKEN THE PRECAUTION OF FILING THESE EVIDENCES BEFORE THE LD. CIT(A) BUT THAT HAS NOT BEEN DONE. FURTHER ASSESSEE HAS NOT FILED ANY EVIDENCE A ND ONLY COPY OF LEDGER FROM THE BOOKS OF THE ASSESSEE ALONGWITH A COPY OF THE B ANK STATEMENT HAS BEEN FILED WHICH CANNOT BE CONSTRUED AS EVIDENCE TO SHOW THAT ASSESSEE HAS REALLY RECEIVED CASH FROM THESE PERSONS. HE ALSO RELIED ON THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN CASE OF SHRI. SUDHIR KUMAR SHARMA (HUF) VS. CIT- III, IN ITA NO. 122 OF 2014 WHEREIN SIMILAR CIRCUMS TANCES THE HONBLE COURT REFUSED TO ADMIT THE ADDITIONAL EVIDENCE. 5 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFU LLY AND FIND NO FORCE IN THE SUBMISSIONS OF LD. COUNSEL FOR THE ASSESSEE. TH E FATHER OF THE ASSESSEE DIED ON 23/02/2010 WHEREAS THE ASSESSMENT PROCEEDING INI TIALLY STARTED FROM 30/08/2010 I.E; AFTER A GAP OF ALMOST SIX MONTHS AN D THEREFORE DEATH OF THE FATHER OF THE ASSESEE CANNOT BE AN EXCUSE FOR NOT F ILING THE PROPER EVIDENCE. FURTHER THE SON OF THE ASSESSEEE ALSO REMAINS NOT W ELL ONLY DURING THE PERIOD FROM JAN TO NOVEMBER WHEREAS THE ASSESSMENT ORDER W AS ALSO FINALLY PASSED ON 31/12/2010. IN ANY CASE THE PERUSAL OF THE MEDICAL REPORT SHOWS THAT MAXIMUM TEST REPORTS RELATES TO BLOOD SUGAR LEVEL WHICH IS NOT A SERIOUS DISEASE. IN ANY CASE ONCE THE ISSUE WAS DECIDED AGAINST THE ASSESSE E HE SHOULD HAVE TAKEN THE PRECAUTION TO FILE EVIDENCE IF ANY BEFORE THE C IT(A). THE LD. CIT(A) HAS ORIGINALLY FIXED THE DATE OF HEARING ON 07/09/2011 WHICH WAS ADJOURNED TO 15/09/2011, 10/10/2011, 04/11/2011, 22/11/2011, 02/ 12/2011, 12/12/2011, THIS MEANS THAT THE LD. CIT(A) GAVE MORE THAN HALF A DOZ EN OPPORTUNITIES TO THE ASSESSEE BUT ASSESSEE DID NOT TAKEN ANY PRECAUTION TO FILE THESE EVIDENCES. WE FURTHER FIND THAT DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE HAS FILED A LIST OF 27 PERSONS FROM WHOM THE CASH IS SUPPOSED TO HAV E BEEN RECEIVED OUT OF WHICH PAN ETC. WAS GIVEN FOR TEN PERSONS. THE AO IS SUED SUMMONS TO TWO PERSONS WHICH WERE RETURNED BECAUSE ADDRESSES WAS N OT CORRECT AND WHEN THIS WAS CONFRONTED TO THE ASSESSEE IT WAS SIMPLY STATED THAT MAY BE THESE PERSONS HAVE SHIFTED BUT NO PLAUSIBLE EXPLANATION WAS GIVEN . THE OTHER TWO PERSONS I.E. SHRI. CHAMAN LAL AND SHRI. MANOJ KUMAR STRAIGHTWAY REFUSED THAT THEY HAVE UNDERTAKEN ANY TRANSACTION WITH ASSESSEE AND EVEN D URING THE CROSS EXAMINATION THE ASSESSEES COUNSEL COULD NOT EXPLAI N THE STATEMENT OR FILED ANY EVIDENCE TO SHOW THAT THEY HAVE UNDERTAKEN ANY TRAN SACTION WITH THE ASSESSEE. THIS FACT CLEARLY SHOWS THAT ASSESSEE IS TRYING TO BUILD A STORY AS AN AFTER THOUGHT. WE FURTHER FIND THAT THE EVIDENCE WHICH IS SOUGHT T O BE FILED NOW AS ADDITIONAL EVIDENCE CONSISTS OF COPY OF THE LEDGER ACCOUNT AND PAN NUMBERS OF VARIOUS PEOPLE AND IN SOME CASES BANK PASS BOOK IS ALSO THE RE. BUT IN NO CASE ANY CONFIRMATION HAS BEEN FILED FROM SUCH PERSONS FROM WHOM CASH IS SUPPOSED TO HAVE BEEN RECEIVED. THEREFORE, ASSESSEE IS TRYING T O MAKE A HALF HEARTED EFFORT JUST TO GAIN A REMAND SO THAT ASSESSEE CAN GO BACK AND COOK SOMETHING BEFORE AO. IN THESE CIRCUMSTANCES WE ARE NOT INCLINED TO A DMIT THE ADDITIONAL EVIDENCE AND THEREFORE REJECT THESE APPLICATIONS FO R ADMISSION OF ADDITIONAL EVIDENCE. FURTHER IN ALMOST SIMILAR CIRCUMSTANCES I N CASE OF M/S BIG BULL 6 COMMODITIES PVT. LIMITED VS. THE CIT-III (SUPRA) WH ERE ASSESSEE MOVED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE BE FORE THE HONBLE HIGH COURT THE SAME APPLICATION WAS REJECTED BY OBSERVING IN P ARA 9 THAT ASSESSEE HAD FAILED TO PRODUCE ANY EVIDENCE IN SUPPORT OF THE CR EDITORS AND SINCE AO HAS GIVEN SUFFICIENT OPPORTUNITIES THEREFORE, ADDITIONA L EVIDENCE WAS NOT REQUIRED TO BE ADMITTED. THEREFORE, CONSIDERING THE CIRCUMSTANC ES AS WELL AS THE OBSERVATIONS OF THE HONBLE HIGH COURT IN CASE OF M/S BIG BULL COMMODITIES PVT. LIMITED VS. THE CIT-III (SUPRA) WE REJECT THIS APPL ICATION FOR ADMISSION OF ADDITIONAL EVIDENCE. SINCE NO FURTHER ARGUMENTS WERE MADE IN RESPECT OF THESE TWO GROUNDS ON MERIT WE ARE CONSTRAINED TO CONFIRM THE ADDITION MA DE BY LOWER AUTHORITIES. GROUND NO. 4 11. AFTER HEARING BOTH THE PARTIES WE FIND THAT DURING THE ASSESSMENT PROCEEDINGS AO NOTICED THAT ASSESEE HAS DECLARED IN COME FROM TRADING OF SHARES AND WHICH WAS TREATED AS INCOME OF BUSINESS & PROFESSION AND NORMAL TAX WAS PAID. FURTHER ASSESSEE HAD ALSO CLAIMED INCOME UNDER THE HEAD OF CAPITAL GAIN AS SHORT TERM CAPITAL GAIN AS WELL AS LONG TER M CAPITAL GAIN ON SOME OTHER TRANSACTIONS OF DEALING IN SHARES. THE ASSESSEE WAS CALLED UPON TO SHOW WHY THE INCOME SHOWN AS SHORT TERM CAPITAL GAIN AND LONG TE RM CAPITAL GAIN SHOULD NOT BE TREATED AS BUSINESS INCOME. IN RESPONSE VIDE LET TER DT. 24/12/2010 AND 28/12/2010 IT WAS STATED AS UNDER: THE HAS MADE INVESTMENT IN SHARE DURING THE YEAR UN DER CONSIDERATION HE HAS DIVIDED THE INCOME IN TWO PORTFOLIOS- ONE AN INVESTMENT PORTFOLIO COMPRISING OF SECURITY WHICH RE OT BE TREATED CAPIT AL ASSETS AND TWO A TRADING PORTFOLIO TO BE TREATED AS TRADING ASSETS DEPENDING UPON THE HOLDING PERIOD, TO DERIVE THE INCOME OF INCOME BY WAY OF DIVIDED THE A SSESSEE HAS SHOWN INCOME FROM TRADING IN SHARES THAT IS OF REVENUE NA TURE TO THE TUNE OF RS. 3,72,640/- IN RESPECT OF THOSE INVESTMENTS THE MOTI VE OF WHICH IS TO EARN PROFIT AND TAKEN IN TRADING ACCOUNT. FURTHER IN RESPECT OF INVESTMENTS THE OBJECT OF WHICH IS EARN THE DIVIDEND AND FOR GROWTH HAS BEEN TAKEN AND SHOWN UNDER HEAD THE CAPITAL GAIN, A DIVIDEND OF RS. 24,445/- H AS BEEN RECEIVED ON THOSE INVESTMENTS. AO AFTER CONSIDERING THESE SUBMISSIONS REFERRED TO CIRCULAR NO. 4 OF 2007 DT. 15/01 ISSUED BY CBDT AND CERTAIN DECISIONS OBSERVED THAT KEEPING THE NATURE OF TRANSACTIONS, VOLUME OF TRANSACTIONS THE INTENTION OF THE ASSESSEE WAS TO TRADE IN SUCH SHARES. IT WAS FURTHER SEEN FROM THE TAX AUDIT REPORT THAT NATURE OF THE BUSINESS WAS SHOWN AS TRADING IN SHARES AND COMMO DITIES. THE PERUSAL OF THE BALANCE SHEET REVEALED THAT SHARES WERE SHOWN AS ST OCK IN TRADE AND NOT AS INVESTMENT THEREFORE THE TRANSACTIONS IN SHARES WER E HELD TO BE IN THE NATURE OF 7 BUSINESS ACTIVITY AND THE INCOME WAS ASSESSED AS IN COME FROM BUSINESS AND PROFESSION. 12. ON APPEAL THE ACTION OF THE AO WAS CONFIRMED BY THE LD. CIT(A). 13. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT WHEREVER ASSESSEE HAS DEALT IN SHARES ON THE SAME DAY BASIS THE SAME WAS SHOWN AS TRADING PROFIT BY ASSESSEE HIMSELF. HOWEVER, WHEREV ER THE DELIVERIES WERE TAKEN AND THEN SUCH DELIVERIES WERE SOLD AFTER A GAP OF S OME TIME AND THE TRANSACTIONS WERE TREATED TO BE IN THE NATURE OF CA PITAL INVESTMENT AND THAT IS WHY THE PROFIT WAS DECLARED UNDER THE HEAD OF CAPIT AL GAIN. HE FURTHER SUBMITTED THAT SIMILAR TRANSACTIONS IN EARLIER YEAR S AS WELL AS LATER YEARS WERE ACCEPTED BY THE DEPARTMENT AS TRANSACTIONS FROM CAP ITAL GAIN. THEREFORE CONSIDERING THE PRINCIPLE OF CONSISTENCY IN THIS YE AR ALSO THESE TRANSACTIONS SHOULD BE TREATED UNDER THE HEAD OF CAPITAL GAIN. 14. ON THE OTHER HAND LD. DR STRONGLY SUPPORTED THE ORD ER OF AO AND CIT(A). HE FURTHER SUBMITTED THAT WHETHER A PARTICULAR TRAN SACTIONS IS OF TRADING NATURE OR INVESTMENT NATURE DEPENDS ON THE VOLUME, DURATION F OR WHICH INVESTMENT WAS MADE, REPETITION OF TRANSACTIONS ETC. HAS TO BE SEE N. IN ANY CASE THE ASSESSEE HAS SHOWN THE SHARES AS STOCK IN TRADE WHICH ITSELF MAKES IT CLEAR THAT TRANSACTIONS WERE IN THE NATURE OF TRADING TRANSACT ION. 15. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFULLY. THERE CANNOT BE ANY RES-JUDICATA IN SUCH MATTERS BECAUSE IN EVERY YEAR IT DEPENDS ON THE NATURE OF TRANSACTIONS. THE HONBLE SUPREME COURT IN CASE OF NEW JEHANGIR VAKIL MILLS CO. LTD. VS. CIT, BOMBAY NORTH, KUTCH AND SAURASHTRA W HICH WAS HELD AS UNDER: HELD, THAT THOUGH THE QUESTION WHICH DIRECTLY AROSE BEFORE THE TAXING AUTHORITIES WAS WHETHER THE ASSESSEE WAS A DEALER I N SHARES IN 1944, THE QUESTION OF THE POSITION OF THE ASSESSEE IN 1943 ALSO AROSE IN DETERMINING HOW THE PROFITS MADE IN 1944 SHOULD BE COMPUTED. THEREFORE IT WAS N OT CORRECT TO SAY THAT THE POSITION OF THE ASSESSEE IN 1943 WAS COMPLETELY OUT SIDE THE SCOPE OF THE ASSESSMENT PROCEEDINGS FOR 1946-46. IN DETERMINING OR COMPUTING PROFITS MDE BY THE SALE IN SHARES IN 1944, THE ASSESSING AUTHORITI ES HAD TO DECIDE WHETHER THE ASSESSEE STARTED ITS SHARE-DEALING ACTIVITIES ON JA NUARY 1, 1944, OR AT AN EARLIER DATE. IT WAS, THEREFORE, OPEN TO THE TAXING AUTHORI TIES TO CONSIDER THE POSITION OF THE ASSESSEE IN 1943. THE CIRCUMSTANCES THAT IN AN EARLIER ASSESSMENT RELATING TO 1943 THE ASSESSE WAS TREATED AS AN INVESTOR DID NOT ESTOP THE ASSESSING AUTHORITIES FROM CONSIDERING, FOR THE PURPOSE OF COMPUTATION OF THE PROFITS OF 1944, AS TO WHEN THE TRADING ACTIVITIES OF THE ASSESSEE IN SHAR ES BEGAN. NOR COULD IT BE SAID, BECAUSE IT WAS HELD THAT THE TRADING ACTIVITIES BEG AN IN 1943, THAT THE ASSESSMENT RELATING TO THE YEAR 1943 WAS BEING REOPENED. WHAT WAS BEING DONE WAS ONLY TO COMPUTE THE PROFITS OF 1944, WHICH THE AUTHORITIES WERE ENTITLED TO DO, BY FINDING OUT WHEN THE TRADING ACTIVITY IN SHARES BEGAN. IN MATTER OF TAXATION CAN BE NO QUESTION OF RES JU DICATA. THE DECISIONS GIVEN BY AN INCOME-TAX OFFICER FOR ONE ASSESSMENT Y EAR CANNOT AFFECT OR BIND HIS 8 DECISION FOR ANOTHER YEAR. GENERALLY, THE DOCTRINE OF RES JUDICATA OR ESTOPPEL BY RECORD DOES NOT APPLY TO SUCH DECISIONS. BEFORE US A CHART SHOWING TRANSACTIONS WAS ALSO FIL ED AND PERUSAL OF THE SAME CLEARLY SHOWS THAT ASSESSEE HAS DEALT IN VARIOUS SH ARE TRANSACTIONS AND THEY ARE IN THE NATURE OF TRADING TRANSACTIONS. IN LARGE NUM BER OF TRANSACTIONS THE ASSESSEE HELD SHARES FOR LESS THAN SEVEN DAYS IN SO ME CASES THE TRANSACTIONS ARE OF REPEATED NATURE FOR EXAMPLE IN CASE OF GMR INFRA 500 SHARES WERE PURCHASED ON 20/11/2007 AND SOLD ON 21/11/2007 AGAI N 2000 SHARES WERE PURCHASED ON 21/11/2007 AND SOLD ON 28/11/2007 ON 1 2/03/2008 FURTHER 200 SHARES WERE PURCHASED AND SOLD ON 13/03/2008. AGAI N IN CASE OF HFCL 100 SHARES WERE PURCHASED ON 06/06/2007 AND SOLD ON 02/ 07/2007 AGAIN 1000 SHARES WERE PURCHASED ON 25/10/2007 AND SOLD ON 30/10/2007 AGAIN 7500 SHARES WERE PURCHASED ON 26/02/2008 AND SOLD ON 27/02/2008 ON 2 9/02/2008 FURTHER 2500 SHARES WERE PURCHASED AND SOLD ON 31/03/2008. SAME THINGS HAPPENED IN CASE OF SHARES OF HDIL, BHEL, ICICI BANK, INFOSYS ETC. IF THE ASSESSEE HAD INTENTION TO INVEST THEN WHY HE PURCHASED SHARES OF GMR INFRA FI RST ON 20/11/2007 AND SELLS THEM ON 21/11/2007 AND THEN AGAIN PURCHASED ON 21/1 1/2007 AND SELLS THEM ON 28/11/2007 AND THEN AGAIN PURCHASED ON 12/03/2008 A ND SOLD ON 13/03/2008. THIS ITSELF SHOWS THAT ASSESSEE WAS A TRADER. FURTH ER ASSESSEE HAS DEALT IN LARGE NUMBERS OF SHARES TOTALING TO 64 SCRIPTS IN VARIOUS TRANSACTIONS DURING THE YEAR. AO HAS ALSO NOTED THAT TOTAL NUMBER OF SHARES PURCH ASED DURING THE YEAR WERE 11,12,741 FOR A SUM OF RS. 1,87,76,103, AND SOLD 1 1,12,741 SHARES FOR A SUM OF RS. 1,94,69,637/-. IN ANY CASE AO HAS RIGHTLY NOTED TH AT SHARES HAVE BEEN SHOWN AS STOCK IN TRADE IN THE BALANCE SHEET AND NOT AS INVE STMENT. ONCE THE SHARE HAVE BEEN SHOWN IN STOCK IN TRADE BY THE ASSESSEE ITSELF THEN IT CANNOT BE SAID THAT ASSESSEE HAD MADE INVESTMENT IN SUCH SHARES THEREFO RE IN OUR OPINION THE AO AND CIT(A) HAS CORRECTLY HELD THESE TRANSACTIONS TO BE IN THE NATURE OR TRADING TRANSACTIONS AND WE FIND NOTHING WRONG IN THE SAME AND UPHOLD THE ORDER OF LD. CIT(A). 16. IN THE RESULT APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/02/2015 SD/- SD/- (BHAVNESH SAINI) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 06/02/2015 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR