Commissioner Of Income Tax v. Hari Prasad Gupta

IN THB HIGH COURT OF CHHATTISGARH AT BILASPURTAX CASENO.^)OF 2^Q OJVJSJOn Bgncfc.PPELLAN'^.\.l^-*\^'^^Commissioner[of][ Iricome][ Tax,]•••<%^A:f^a^J waF4-3~(2)\RaiPur Rangc,'^-««.-Raipur, Chhattisgarh.A^vVersus.0^PONDENT:^Hari Prasad Gupta,C/p M/s. Sunita Finlease Limited,Opposite Raj Kumar College,G.E. Road, Raipur,Chhattisgarh.INCOME TAX APPEAL UNDER SECTION 260-A OF THEINCOME TAX, 1961Ate^- HIGH COURT OF CHHATTISGARH AT BILASPUR CORAM:HON'BLE SHRI YATINDRA SINGH, C.J.HON'BLE SHRI PRITINKER DIWAKER, J. Tax Case No.21 of 2011 Appellant Commissioner of Income TaxVERSUSHari Prasad Gupta Respondent Income Tax appeal u/s 260-A of Income Tax Act 1961 Appearance: Shri Anand Dadariya, counsel for the Appellant. JUDGEMENT(25thJuly,2013) 1. This is a tax appeal against the order of the Income Tax AppellateTribunal,Bilaspur Bench,Bilaspur (theTribunal) dated04.06.2010allowing the appeal of Shri Hari Prasad Gupta (the Assessee) in respectof Assessment Year (AY) 2006-07. THE FACTS2. The Assessee filed his return for AY-2006-07 claiming sale proceedsof some shares as short term capital gains. 3. The Assessing Officer (the AO) by his order dated 23.03.2007accepted the case of the Assessee and treated the sale proceeds to beshort term capital gains. 4.The Commissioner of Income Tax (Appeals) Raipur(the CIT-A)passed an order under section 263 of the Income Tax Act, 1961 (the Act)directing to treat the proceeds from the sale of the shares not as shortterm capital gains, but as a business income. 5. Aggrieved by the aforesaid order, the Assessee fited an appeal beforethe Tribunal.It was allowed on 04.06.2010.Hence, the appeal by theIncome Tax Department (the Department). THE DECISION 6. We have heard counsel for the Appellant. padma 7. This appeal was admitted on 20.06.2011 on the followingsubstantialquestion of law: ' Whether on the facts and in the circumstances of the case and inlaw, the ITAT was justified in quashing the order under Section263 of the Act and considering the share transactions of theassessee to be one time investment, when the transactions clearlyshowedthebusinesscharacteristicsofvolume,frequency,continuity, regularity and also the intention to continue the activityin future?' 8.The Tribunal after considering all the aspects of the matter hasrecorded a finding that the AO had taken one possible view of the matter.In such a case, if two views are possible and one had been taken by theAO, then the power under section 263 of the Act could not be exercised.There is no illegality in the same. 9. In view of above, the question is answered against the Department.The tax case has no merit. It is dismissed.-C^-^L Sd/-Pritinker DiwakerJudge Sd/- Chief Justice