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TMI Blog2016 (3) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent assessee was justified. This findings of fact has not been shown to be perverse and / or arbitrary giving rise to any question of law. - Income Tax Appeal No. 2302 of 2013 - - - Dated:- 7-3-2016 - M. S. Sanklecha And A. K. Menon, JJ. For the Appellant : Mr. Arvind Pinto For the Respondent : Ms. Aasifa Khan ORDER P. C. 1. This Appeal under Section 260A of the Income Tax Act, 1961 (the Act) challenges the order dated 5th April, 2013 passed by the Income Tax Appellate Tribunal (the Tribunal). The impugned order is in respect of Assessment Year 2007-08. 2. This appeal raises the following questions of law for our consideration : (i) Whether on the facts and in the circumstances of the case and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shares were always considered as a part of its investment portfolio and not on trading account as is evident from its books of accounts. 4. The Assessing Officer by his order dated 27th November, 2009 did not accept the above, holding that the respondent assessee had organized its portfolios into trading and investment only for its own convenience. Consequently, the Assessing Officer brought to tax as business income of ₹ 17.04 lakhs and ₹ 1.24 crores offered by the respondent assessee as long term capital gains and short term capital gains respectively. 5. Being aggrieved, the respondent assessee carried the issue in appeal to the Commissioner of Income Tax (Appeals) [CIT(A)]. By its order dated 15th September, 2010 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, we shall consider the question as raised for our consideration. 8. Re. Question No.(i) : (a) Mr. Pinto, learned Counsel for the Revenue states that as the Memorandum of Association of the respondent assessee has as its object clause dealing in shares, it must follow that any income earned by the respondent assessee in respect of shares should be classified only as business income. This according to him even if income arises from investments as claimed by the respondent assessee. The memorandum of association has not been produced before us and nor is it a part of the record. It is not the case of the Revenue that there is any prohibition in the Memorandum of Association to hold shares in investments. Infact, this was not an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eads to harassment of the assessee but also in precious judicial time being lost in considering such appeals. This is particularly unfair when large number of appeals are awaiting consideration by this Court. 11. Notwithstanding the above, on merits we find that the CIT(A) as well as the Tribunal have on consideration of all the facts concluded that the respondent assessee has subsequent to the Resolution of its Board made investment in shares as investments. The gains / loss earned on these investments were held to be chargeable to tax under the head capital gains on consideration of all facts and application of applicable law i.e. well settled test to distinguish between gains of trading and capital gains. In the above view, as two aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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