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TMI Blog2015 (9) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... us, no substantial question of law would arise to warrant admission of the question as proposed. It is to be noted that even according to the Revenue, there can be difference of opinion on the appreciation of facts. If that be so, the CIT (A) and the Tribunal has taken a particular view which is not shown to be perverse or arbitrary in the context of the facts. The view taken is a possible view on the facts and therefore, calls for no interference. Thus we see no reason to entertain the question as proposed. - Decided against revenue. - Income Tax Appeal No. 1601 of 2013 - - - Dated:- 9-9-2015 - M. S. Sanklecha And G. S. Kulkarni, JJ. For the Petitioner : Mr. A.R.Malhotra with Mr.N.A.Kazi For the Respondent : Mr.K.Shivram, Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 143(3) of the Act it was held that the respondent - assessee was a dealer in shares to the extent it claimed income under the head 'short term capital gains' and was subjected to tax under the head 'business income'. 4. In appeal, the Commissioner of Income Tax (Appeals) (CIT (A)) on consideration of the following facts: (a) respondent - assessee has been an investor in shares and has consistently treated its entire investment in shares as investment in shares not stockintrade ; (b) the income earned on sale of shares was offered as short term capital gains even when losses were suffered in a particular year; (c) dealing in 35 scrips, involving 59 transactions for the entire year could not be consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Direct Taxes laying down the tests for distinguishing the shares held in stockintrade and shares held as an investment, the shares held by the respondent - assessee was investment. Thus allowed the appeal of the respondent - assessee and held the income to be treated as short term capital gains. 5. On further appeal by the Revenue, the Tribunal after recording the aforesaid finding of the CIT (A) came to the conclusion that the finding of the CIT (A) calls for no interference. Besides, the impugned order also records the fact that the Coordinate Bench of the Tribunal in the case of the respondent-assessee's son one Jai Mahendra Shah had held the gain arising from purchase and sale of the shares is taxable under the head 'short te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 8. I say that the order dated 27/02/2013 of the Honourable Tribunal in the case of Smt.Datta Mahendra Shah for AY 2008-09 was perused by the then CIT-16, Mumbai and the said CIT had recommended appeal to the Hon.High Court by holding that the Honourable Tribunal was bound to consider each case on its own merits and that the case of Shri.Jay Mahendra Shah and that of Smt.Datta Mahendra Shah were not identical and no due consideration of the appeal by revenue was given by the Honourable Tribunal. I say that the then CCIT-IX, Mumbai agreed with the recommendation of the then CIT-16, Mumbai and the appeal to Hon. High Court was accordingly made. 9. I say that different officers at different times were concerned in taking decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld on examination by the Tribunal. In view of the concurrent finding of fact arrived at by the CIT (A) and the Tribunal, according to us, no substantial question of law would arise to warrant admission of the question as proposed. It is to be noted that even according to the Revenue, there can be difference of opinion on the appreciation of facts. If that be so, the CIT (A) and the Tribunal has taken a particular view which is not shown to be perverse or arbitrary in the context of the facts. The view taken is a possible view on the facts and therefore, calls for no interference. Thus we see no reason to entertain the question as proposed. 10. Before closing we would make a reference of affidavit dated 8 September 2015 of Shri.R.P.M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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