THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
I.T.T.A. No. 432 of 2014
DATED:17.07.2014 Between:
Vijayender Tulla, Hyderabad.
And Assistant Commissioner of Income Tax, Hyderabad.
… Appellant ….Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
I.T.T.A. No. 432 of 2014
Judgment: (per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta)
This appeal is sought to be preferred against the judgment and order of the learned Tribunal dated 29/11/2013 in relation to the assessment year 2008-2009 on the following suggested questions of law:
1. Whether on the facts and in the circumstances of the case, the decision of the Appellate Tribunal upholding the orders of the Assessing Officer and Commissioner of Income Tax (Appeals) in assessing as income from business the short term capital gain of Rs. 95,89,511/- admitted by the appellant suffers from perversity ?
2. Whether on the facts and in the circumstances of the case, the Appellate Tribunal erred in not reversing the orders of the Assessing Officer and the Commissioner of Income Tax (Appeals) who have chosen to depart from the consistent view taken by the income tax department for the earlier years even when the facts are identical with the facts in the earlier years ?
However, the learned counsel while assailing the impugned judgment and order of the learned Tribunal, says that the appeal should be admitted as the learned Tribunal did not uphold the rule of consistency on identical facts and issues.
In order to examine this contention, we have to consider whether the rule of consistency is required to be followed or not.
The learned Tribunal, in order to consider the claim of investment in the form of short term capital gain, on fact, found that it is not an investment, but it is a trading activity. When the learned Tribunal, on fact, found after scrutiny of the transaction that it is not an investment, the question of treating it as a short term gain does not arise.
We have to follow the accepted principle of law. If any decision is rendered on any fact previously, even in relation to the same assessment year, it cannot be binding always and the principle of rule of consistency will apply only when the pure point of law is based on correct appreciation of fact. The law on fact is one thing, but the decision on correct appreciation of fact is another thing. But, if conclusion on the fact is varying on correct appreciation of fact, obviously, that decision cannot be applied as a matter of course or on the principle of rule of consistency. Hence, we do not find any element of law involved in this appeal.
We accordingly dismiss the appeal.
Consequently, the miscellaneous applications, if any pending, shall also stand closed. No costs.
K.J. SENGUPTA, CJ 17th July, 2014 pnb SANJAY KUMAR, J