Itxa/395/2011 Of The Commissioner Of Income Tax - 4 Mumbai v. J.m. Share And Stock Brokers Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 395 OF 2011 The Commissioner of Income Tax-4, Mumbai..Appellant.V/s.M/s. J. M. Share & Stock Brokers Ltd...Respondent. Mr. Vimal Gupta, Sr.Advocate with Padma Divakar, for the Appellant.Dr. K. Shivram with Mr. A. R.Singh, Mr. Kirit Hakani and Mr. Parag, for the Respondent. P.C:- CORAM: J.P.DEVADHAR & M.S.SANKLECHA,JJ.DATE : 11[th] JANUARY, 2013. In this Appeal, the Revenue has raised the following substantial questions of law for consideration by this Court. “Whether on the facts and in the circumstances of the case and in law the Hon'ble Tribunal was justified in holding that the profit from purchase and sale of shares is to be taxed under the head “Capital Gains” and not under the head “Income from Business” as held by the Assessing Officer ?” 2We find that the CIT(A) as well as Tribunal have concurrently reached a finding of fact that the Respondent-Assessee had sufficient funds to invest in shares and had not borrowed any funds for the same. Further the Tribunal has observed that investment has also been made by the Respondent-Assessee in unquoted shares to the extent of Rs. 12.18 crores out of total investment of Rs.19.90 Crores from its own funds and no trader would invest in unquoted shares which are not freely tradeable investments. Further the Tribunal held that the finding of CIT(A) that assessee has shown investment separately in its books of account under the head of investment has not been controverted by the revenue. 3In view of the concurrent finding of the fact arrived at by the authorities and in the absence of the same being shown to be perverse, we see no reason to entertain the proposed question. Accordingly, appeal is dismissed with no order as to costs. (M.S.SANKLECHA,J.) (J.P.DEVADHAR,J.)