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TMI Blog2007 (9) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... the case, the Income-tax Appellate Tribunal was right in setting aside the order of the Commissioner of Income Tax under Section 263 on the grounds that the Commissioner of Income Tax could not consider the tax effect of two assessment years together? 2. Whether on the facts and in the circumstances of the case that the Income Tax Appellate Tribunal was right in holding that the income/loss arising from the transactions in shares of the assessee was income/loss under the head capital gains in spite of the fact that the assessee was showing the income/loss as business income/loss all along? 2. In the return filed for the assessment year 1994-95 and 1995-96, the assessee claimed loss on the sale of shares as business loss. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company was carrying on business as an investment company and the same had been disclosed as so in the balance sheet. Most of the shares had been held for a long time and therefore placing reliance on the decision of the Calcutta High Court in the case of KARAMCHAND THAPAR AND BROTHERS VS. COMMISSIONER OF INCOME-TAX reported in (1978) 115 ITR 255, the assessee contended that the sale of shares were to be assessed only under the head capital gains . Considering the loss suffered, the same had to be treated as capital loss. 4. The Tribunal considered the claim of the assessee and the revenue and pointed out that on the undisputed facts right from inception, the assessee had never shown the value of the shares held by it as stock in tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es only as investments and it was not holding the shares as a stock-in-trade or current assets to deal in them. Ultimately the Tribunal came to the conclusion that what was realised by the assessee on the sales of the shares was only capital asset resulting in capital gain . In these circumstances, the Tribunal allowed the appeals of the assessee. 5. Aggrieved by this the revenue has come on appeal before this Court contending that the conduct of the assessee right from the beginning shows that he intended to keep the shares only as a stock in trade as such, being current assets, the Tribunal committed error in its view that it is a capital asset attracting liability as capital gains . 6. We do not find any force in the ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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