9911796707
TMI Blog2016 (8) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The question referred to us is answered in favour of the revenue and against the assessee. - Tax Appeal No. 3, 21 of 2003 - - - Dated:- 11-7-2016 - KS Jhaveri And G. R. Udhwani, JJ. For the Appellant : MR MANISH SHAH, ADVOCATE AND MR. JP SHAH, ADVOCATE For the Opponent : MR PRANAV G DESAI, SENIOR STANDING COUNSEL JUDGMENT ( Per : Honourable Mr. Justice KS Jhaveri ) The assessee has filed these appeals under section 260A of the Income-tax Act, 1961, challenging the order of the Income-tax Appellate Tribunal (hereinafter referred to as the Tribunal ) dated 30.7.2002 whereby the Tribunal has allowed the appeal of the revenue by reversing the order of the Commissioner (Appeals) and confirming the order of the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee is a capital investment. He has taken us through the record of the case and contended that in all the preceding years the assessee was held to be an investor of shares and in wealthtax the shares have been held to be on investment account and in the particular year the assessee was held to be a dealer in shares and the income was treated as business income. Therefore, the Tribunal was not justified in holding that the assessee is a dealer in shares and the shares sold were stockin- trade. He has relied on the decision of the Apex Court in the case of Commissioner of Income-tax v. Excel Industries Ltd., reported in (2013) 358 ITR 295 (SC) wherein paragraph No. 31 it was observed as under: It appears from the record that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actions. At the same time it does not necessarily mean that a share broker himself cannot be an investor. Hence, the nature of commodity would not be decisive factor to resolve the dispute in this case. The Tribunal has further observed in paragraph No. 14 of the order thus: Having equipped ourselves with requisite guidance from their Lordships of various High Courts and the Supreme Court, let us now have a look at the transactions. So far as short term holdings are concerned, first purchase started right from the first day of the accounting year and lasted till the last day of the accounting year. This involved, in all 38 transactions of purchases. Sales started from the very second month of the accounting year and lasted till t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose was of investment, but circumstances changed so much within hours or months that sale was triggered and hence sale proceeds should be regarded as capital receipts. If investment was the intention, then almost all the shares that were acquired during the year would not have been disposed off before the year ended. Hardly a month or two passed away without any transaction. Otherwise, purchases have continued throughout the year and sales have also continued throughout the year. We are unable to see any investment intention. The Tribunal has, in paragraph No. 15 of the order, further observed as under: It has been stated in one of the written submissions before the lower authorities, and it was argued before us also that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he intention we gathered from the nature of transactions entered into by the assessee. After all what is intention it is a stretching or bending of mind, a determination to do a special thing or to act in a particular manner. When such is the bent of mind, it is difficult to make a different view for those sales transactions where the shares were acquired prior to the years under consideration. Even if we make such a distinction, it cannot be regarded as an intelligible distinction because of the dominant impression left on the mind after considering all the facts and circumstances. I has been argued that the assessee has been offering huge dividend income for tax. This argument would have been acceptable, had the conduct of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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