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TMI Blog2018 (2) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... - M. S. Sanklecha And Riyaz I. Chagla, JJ. Mr. Firoze B. Andhyarujina, Senior Counsel a/w Mr. Maneck Andhyarujina, Mr. Rahul Hakani for the Appellant Mr. A. R. Malhotra for the Respondents ORDER P. C. 1. This Appeal under Section 260A of the Income Tax Act, 1961 (the Act), challenges the order dated 6th February, 2015 passed by the Income Tax Appellate Tribunal (the Tribunal). The impugned order dated 6th February, 2015 is in respect of Assessment Year 2008-09. 2. The Appellant urges the following questions of law, for our consideration : (a) Whether in law and in the circumstances of the case, the the Tribunal is justified in confirming treatment of Long Term Capital Gains of ₹ 16,93,88,051/and Short T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med on trading account such as office rent, salaries, etc., Moreover, the Appellant had borrowed an amount of ₹ 1.16 Crores for business in shares. Further, the balancesheet did not indicate any investment in shares. All the shares were shown as stockintrade. (c) Thereafter, the specific submissions of the Appellant in support of its contention that he is an investor for the subject Assessment Year, was specifically dealt with by the Assessing Officer, as under: (i) Assessee's submission: The assessee is an investor and has been undertaking only investment activity over a period of time. Comments:The above statement is obviously incorrect as the assessee is in the business of trading in shares for A. Y. 2007-08 as discusse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Comments: As per form 10DB furnished by the assessee, it is seen that assessee has entered into sale of equity shares to the tune of ₹ 25,97,376/which are settled otherwise than by way of actual delivery of shares. In other words, assessee has entered into speculation transactions in shares. Therefore, the statement that all transactions undertaken by the assessee have been delivery based and at no point of time the purchase and sale of shares have been squared off on the same day is factually incorrect. (vi) Assessee's submission: We would further emphasize that all the investments in shares by the assessee were always treated as investments by it and at no point of time the same were treated as stock in trade of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved, the Appellant filed an Appeal before the Commissioner of Income Tax (Appeals) [CIT(A)]. By an orderdated 25th November, 2011, the CIT(A) dismissed the Appellant's appeal while upholding the order dated 24th December, 2010 of the Assessing Officer. Thus, on facts found that Appellant-Assessee was a traderinshares and his income/gain is classifiable as business income. (f) Being aggrieved, the Appellant filed a further appeal to the Tribunal. By an order dated 6th February, 2015, the Tribunal dismissed the appeal. This by holding that the Appellant had not been able to show any change in the circumstances which would justify the stand now taken that the income in the present year be treated as income out of investments. The Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Its contention that all its submissions are made before the Tribunal, were not considered, is now unsustainable as its rectification application was dismissed on 9th October, 2015. Further, the Tribunal on application of the decision of this Court in Gopal Purohit (supra), held that Rule of consistency would apply, particularly in the absence of change in facts from that found in the earlier Assessment Year. Thus, on facts, we find that the view taken by the Tribunal is a very possible view. (j) In the above view, question (a) does not give rise to any substantial question of law. Thus, not entertained. 4. The Appeal is admitted on the substantial question of law at (b). 5. Registry is directed to communicate copy of this order t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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