Commissioner Of Income Tax v. A.p.holdings Pvt.ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1150 OF 2012 Commissioner of Income Tax...Appellant -Versus- A.P.Holdings Pvt.Ltd....Respondent .......... Mr.Vimal Gupta, Senior Advocate i/by Mr.Vipul Arun Bajpayee, for the Appellant.Mr.Mihir Naniwadekar, for the Respondent. .......... CORAM : S.C. DHARMADHIKARI ANDA.K. MENON, JJ. DATE : 26[th] September, 2014 P.C. 1 We have heard Mr.Vimal Gupta, learned Senior Counsel appearing for the Revenue in support of this Appeal, which challenges the order of the Income Tax Appellate Tribunal dated 14.10.2011 in Income Tax Appeal No.1178/PN/2010. The Assessment Year is 2006-2007. The issue was, whether, the Commissioner of Income Tax (Appeals) had erred in holding that the Short Term Capital Gains of Rs.1,10,42,690/- on sale of shares of companies, constitute the business income of the Assessee on the alleged ground that the trading in shares and securities is a regular business/ trade of the Assessee. Similar issue was with regard to other shares. After hearing both sides the Tribunal has, on perusal of the record, agreed with the Assessee. The reasons for agreeing with the Assessee and allowing his Appeal are to be found in paragraph 19 of the order of the Tribunal. Pertinently, the Tribunal refers to the stand of the Assessing Officer for three Assessment Years 2005-2006, 2007-2008 and 2008-2009 where similar types of transactions were held as investment. For the subject Assessment Year, however, the Assessing Officer and the Revenue took the stand that the number of transactions would suggest that the Assessee was trading in shares. That stand has not been accepted by looking into the entire records. The accounts and equally explanation of the Assessee is pointing out towards the ultimate conclusion recorded by the Tribunal. In such circumstances we are of the opinion that the direction of the Tribunal to accept the claim of investment in share transactions in question and allow the capital gain accordingly, does not raise any substantial question of law. It is a factual finding and rendered consistent with the material placed on record. The Appeal is devoid of any merits and is dismissed. No costs. (A.K. Menon, J) (S.C. Dharmadhikari, J)