Income Tax Appeal v. The Joint Commissioner Of Income Tax

13 ITXA 573 OF 2017.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.573 OF 2017 …Dilipkumar Vishindas LakhiAppellant versusThe Joint Commissioner of Income Tax,…Range 16(3) Respondent Mr. S.S.Shetty I/by Mr. Atul Jasani, for Appellant. Mr. Sham Walve, for Respondent. CORAM: AKIL KURESHI & S.J. KATHAWALLA, JJ. th JUNE, 2019 DATE: 11 P.C.: 1. This Appeal is filed by the Assessee to challenge the Judgment of the Income Tax Appellate Tribunal (“the Tribunal” for short). The following question is presented for our consideration : (i) Whether in the facts and circumstances of the case and in law, the Tribunal was right in holding that the gains arising from transfer of shares held for a period of less than 30 days is to be treated as business income and not as a capital gains? 2.This appeal relates to the assessment year 2008-09. Identical question had came up for consideration before this Court in the case of this very assessee for earlierassessment year in Income Tax Appeal No.155 of 2017. The Appeal was dismissed SSP 1/3 13 ITXA 573 OF 2017.doc making the following observations : “7. At the outset, we may record that learned counsel for the assessee iscorrect in contending that the mere demarcation of holding shares for lessthan 30 days or more cannot be conclusive or even in a given case thedeterminative factor. However, in the present case, we must appreciate theessence of the order of the Tribunal in overall facts and circumstances ofthe case. After noticing the assessee's activity of buying and selling sharesand income generated from such activity, the Tribunal while grantingpartial relief for the Assessee had recorded that the same was done inpeculiar facts of the case. The ultimate directions of the Tribunaltherefore, must be viewed in such backdrop. 8.The facts on record would sugest that during the period relevant toassessment year 2007-08, which is under consideration, the assessee hadexecuted as many as 106 transactions of buying and selling shares withinless than 30 days. The total value of sale transactions was Rs.7.11 crores.The assessee had also engaged in buying and selling shares of sizablevolume and value after holding them for a period of ranging between twomonths to upto 200 days. It was also noticed that the assessee wasindulging intra-day transactions without taking delivery of the shareswhich gave rise to the assessee's speculative income. 9.When seen in totality of the facts and circumstances of the case, onecannot find fault to the Tribunal's conclusion that the assessee was notpurely an investor in shares. The Tribunal introducing the demarcationline of holding of shares of less than 30 days and more than 30 days forgiving different treatment for receipts arising out in sale of such shareswould not vitiate the very foundation of the Tribunal's finding. No SSP 2/3 13 ITXA 573 OF 2017.doc question of law arises. Income Tax Appeal is dismissed.” 3.In the result, this Appeal is dismissed. ( S.J.KATHAWALLA, J. ) ( AKIL KURESHI, J. ) SSP 3/3