$ 16 & 17 * IN HIGH COURT OF DELHI AT NEW DELHI + ITA 300/2014 Date of decision: 24th September, 2014 ACEE ENTERPRISES ..... Appellant Through Mr. M.P. Rastogi and Mr. K.N. Ahuja, Advocates. versus COMMISSIONER OF INCOME TAX I ..... Respondent Through Mr. Kamal Sawhney, Sr. Standing Counsel with Mr. Jatin Sehgal, Advocate. ITA 304/2014 ACEE ENTERPRISES ..... Appellant Through Mr. M.P. Rastogi and Mr. K.N. Ahuja, Advocates. versus COMMISSIONER OF INCOME TAX I ..... Respondent Through Mr. Kamal Sawhney, Sr. Standing Counsel with Mr. Jatin Sehgal, Advocate. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE V. KAMESWAR RAO SANJIV KHANNA, J. (ORAL) Having heard counsel for parties, we frame following substantial question of law in these appeals, which pertain to assessment years 2007-08 and 2008-09:- Whether Income Tax Appellate Tribunal was ITAs 300/2014 & 304/2014 Page 1 of 4 right in dismissing appeal of appellant- assessee for assessment years 2007-08 and 2008- 09 observing that they do not find any merit and appellant-assessee should be treated as trader of shares in all assessment years without reference to factual matrix? 2. Learned counsel for parties state that as limited and short issue arises for consideration, appeals may be disposed at this stage itself. 3. impugned order dated 26th April, 2013 passed by Income Tax Appellate Tribunal ( Tribunal , for short) related to four assessment years i.e. 2005-06, 2006-07, 2007-08 and 2008-09. 4. Tribunal in impugned order has referred to facts relating to assessment year 2005-06. This was first year, in which appellant-assessee changed nature of its portfolio from shares held as stock-in-trade to that of shares held as investment. With regard to other assessment years, Tribunal has not discussed factual matrix or gone into question of number of transactions relating to sale and purchase, period for which shares were held and other relevant criteria, which have been elucidated in Circular No.4 of 2007 dated 15th June, 2007 as well as decision of Supreme Court in Commissioner of Income Tax (Central), Calcutta Vs. Associated Industrial Company Pvt. Ltd., [1971] 82 ITR 586 and Fidelity Northstar Fund, In Re, [2007] 288 ITR 641 (AAR), which are ITAs 300/2014 & 304/2014 Page 2 of 4 mentioned in aforesaid circular. 5. By order dated 28th July, 2014, after referring to factual matrix of assessment years 2005-06 and 2006-07, we had dismissed ITA Nos.301/2014 and 302/2014, but notice was issued in present ITAs, which relate to assessment years 2007-08 and 2008-09. In these years, we notice that Assessing Officer did not deal with facts, but simply followed his predecessor s order for assessment years 2005-06 and 2006-07 to hold that transactions relating to shares treated by appellant-assessee as short term capital gains should be taxed under head Profits and gains of Business or Profession . 6. Commissioner of Income Tax (Appeals) also did not go in depth and detail and preferred to rely upon earlier orders. In first appellate order relating to assessment year 2007-08, reference was made to transactions in shares of 8 companies, which were held for period ranging from 6 days to 97 days, but learned counsel for appellant-assessee states that there were other shares too, which were held for longer period. For assessment year 2008-09, there is no discussion and elucidation. 7. It is clearly noticeable that impugned order passed by Tribunal does not refer to factual matrix relating to assessment years 2007-08 and 2008-09, except for recording as under:- In other assessment years also, frequency of ITAs 300/2014 & 304/2014 Page 3 of 4 transactions were quite large. Learned CIT(Appeals) has reproduced details of transactions and observed that some of shares were kept only for one, two or three days. . .. As far as other years are concerned, we do not find any merit in appeals of assessee on this issue. assessee has to be treated as trader in shares in all assessment years. 8. We notice that appellant-assessee had declared long-term capital gains and, therefore, stand of appellant-assessee is that he was investor as well as trader in shares. 9. In view of aforesaid factual position, we have to hold that Tribunal has not dealt with contentions raised after examining and ascertaining facts in detail. Answer or conclusion has been recorded without reference to facts of particular year. factual position can vary and can be materially different. question of law, therefore, has to be answered in favour of appellant-assessee, but with order of remand. We clarify that we have not examined contentions of appellant-assessee or respondent-Revenue on merits. appeals are disposed of. 10. To cut short delay, parties are directed to appear before Tribunal on 3rd November, 2014, when date of hearing will be fixed. SANJIV KHANNA, J. V. KAMESWAR RAO, J. SEPTEMBER 24, 2014/NA ITAs 300/2014 & 304/2014 Page 4 of 4 ACEE Enterprises v. Commissioner of Income-tax I