2008 (10) TMI 158 - HC - Income Tax

Tribunal deleting the disallowance of loss in trading of shares loss in share transactions by broker since assessee is giving reasonable explanation with necessary data, assessee cannot be penalized for infraction committed by broker - question whether the impugned share transaction in which the assessee was engaged was a colourable device or not is essentially a question of fact - nothing has been brought by Revenue which would persuade us to hold that the findings returned by the authorities below were either contrary to the evidence placed on record, and, hence perverse

Summary

Issues:
1. Disallowance of loss on account of trading of shares treated as speculation loss.
2. Applicability of the decision in McDowell and Co. Ltd. v. CTO [1985] 154 ITR 148.
3. Perversity of the order of the Income-tax Appellate Tribunal.

Analysis:

1. The case involved an appeal under section 260A of the Income-tax Act, 1961, by the Revenue against the Income-tax Appellate Tribunal's judgment regarding the disallowance of a loss on trading of shares for the assessment year 1996-97. The Revenue contended that the Tribunal erred in law by deleting the loss and treating it as speculation loss. The court found that the findings by the authorities below were factual, and no substantial questions of law arose. The Revenue conceded that the first question of law did not apply to the case, leaving questions (ii) and (iii) for consideration.

2. The Assessing Officer disallowed the loss claimed by the assessee in share transactions, amounting to Rs. 33,31,395, based on various reasons. The Commissioner of Income-tax (Appeals) later examined the facts and evidence provided by the assessee, concluding that the transactions were genuine. The Tribunal upheld this decision, emphasizing that the Assessing Officer's doubts were unfounded and that the transactions were not bogus. The court agreed with the lower authorities' reasoning and found that the disallowance of the loss with respect to 8,100 shares, amounting to Rs. 1,21,600, was justified.

3. The court highlighted that determining whether the share transactions were a colorable device was a question of fact. Referring to relevant case law, the court emphasized that a transaction being a colorable device is a factual determination supported by evidence. The court also addressed the applicability of the McDowell case and found it irrelevant in the present context. No evidence was presented to show that the findings of the lower authorities were contrary to the record or perverse. Consequently, the court dismissed the Revenue's appeal, concluding that there was no basis for interference with the orders of the authorities below.