J.S. Reddy, Accountant Member - ITA No. 5328/Del/ 2010 filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals), Ghaziabad dated 03.09.2010 for the A.Y. 2001-02. ITA No. 5329/Del/2010 is filed against the order of the ld Commissioner of Income Tax (Appeals), Ghaziabad dated 03.09.2010 for the A.Y. 2005-06. In both these appeals, the First Appellate Authority confirmed the order passed by the Assessing Officer under Section 144(1)/ 147 of the I.T. Act for the A.Y. 2001-02 and order under Section 143(3) for the A.Y. 2005-06. ITA No. 5376/Del/2010 is filed against the order of the ld. Commissioner of Income Tax (Appeals), Ghaziabad dated 03.09.2010 wherein he dismissed the appeal of the assessee against an order passed under Section 154 by the Assessing Officer on 21.03.2005 on the ground that the appeal is infructuous.

2. Facts in brief: The assessee is employed with M/s. Adobe Systems (India) Pvt. Ltd. The parent company M/s. Adobe Systems Inc has granted ESOP (Employees Stock Option Plan) to the assessee per terms of the employment. The assessee had sold the stock options in question on various dates. The details are given below:—

3. The assessee filed his return of income for the A.Y. 2001-02 on 27.07.2001 showing taxable income of Rs.24,62,455/- which included long term capital gain of Rs.19,70,467/- on the alleged sale of the said shares, on which he paid at the rate of 10%. The Assessing Officer processed the return under Section 143(1) on 30.08.2002, wherein he treated the long term capital gain declared by the assessee at Rs.19,70,470/-, as short term capital gain, on the ground that, the said shares had not been listed in any of the recognized Stock Exchanges in India. The assessee filed an application under Section 154 and contended that the gain in question as long term capital gain. After considering the details submissions filed by the assessee, the Assessing Officer passed an order under Section 154 of the Act treating the gain in question as long term capital gain, which is taxable at the rate of 20% under section 112 of the I.T.Act.

4. Thereafter, notice under Section 148 of the Act was issued on 17.01.2006 reopening the assessment under Section 147 of the Act. The assessee objected to the reopening. The Assessing Officer completed the assessment under Section 144 read with Section 147 by computing the income of Rs.24,62,455/- on 25.07.2006. In this reassessment order, the Assessing Officer treated the gain in question a short term capital gain. Aggrieved the assessee carried the matter in appeal. The First Appellate Authority rejected the contentions of the assessee on the issue of reopening, as well as on merits. He relied upon the decision of the Delhi Bench of the ITAT in the case of Ajay Pandey and held that the date of exercising option in the instant case was the same date as the date of sale of shares. He concluded that the period of holding is less then 12 months and hence the gain in question is short term capital gain. He further held that consequently, the assessee is not entitled for deduction under Section 54F and under Section 54EC. Aggrieved the assessee has filed appeal for the A.Y. 2001-02. The grounds of appeal are as follows:—

"1. (i)The lower authorities had erred in not appreciating the facts and circumstances of the case or the submissions of the appellant and had further erred in treating the long term capital gain on the sale of the equity shares, which had been allotted under the Employees Stoci Option Plan to the employees of Adobe Systems of India Pvt. Ltd. by the parent company in the name of Adobe Systems Incorporated, USA at the then market rate as being the short term capital gain.

(ii) The lower