Itxa/514/2012 Of The Commissioner Of Income Tax - 16 v. Mrs. Rachana Sanjay Goenka

sbw *1* IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.514 OF 2012 The Commissioner of Income Tax-16 ..Appellant -Versus-Mrs. Rachana Sanjay Goenka ..Respondent ........... Mr. Suresh Kumar for the Appellant.Mr. R. Murlidhar with A. K. Jasani for the Respondent. ........... CORAM: S.C. DHARMADHIKARIAND A. K. MENON, JJ. DATE :- 18[th] SEPTEMBER, 2014 P.C.: 1]We have heard Mr. Suresh Kumar, appearing for the Revenue in support of this Appeal and which challenges the order dated 18[th ]November, 2011 in Income Tax Appeal No.181/Mum/2009. The assessment year is 2005-06. The Commissioner of Income Tax and the Assessing Officer held that the income of Rs.77,12,025/- from sale of investments in shares is profits of the business and not a short term capital gains. 2]Mr. Suresh Kumar invited our attention to the finding of the Assessing Officer and the reasons assigned by him at paras 7 to 9 of the 1/3 order. He also invited our attention to the findings recorded by the Commissioner of Income Tax (Appeals). 3]Mr. Suresh Kumar submits that the approach of the Tribunal results in this Appeal raising a substantial question of law. In that regard, our attention is invited to para 7 of the order of the Tribunal. 4]Having perused all these orders, we are of the opinion that the Tribunal has interfered with the concurrent findings of fact because it found that the Assessing Officer and the Commissioner of Income Tax (Appeals) has gone by the volume of transactions to conclude that the Assessee is a trader. The Tribunal has found out from the entire record as to whether the Assessee can be termed as such. The long term capital gains by selling of certain shares held for considerable period of time have been referred to so as to analyze the other transactions. The Tribunal's findings and after referring to the contract notes would go to show that it has not agreed with the conclusion of the Assessing Officer and the Commissioner of Income Tax (Appeals). It has assigned reasons as to why it cannot agree. As a last fact finding authority, the Tribunal was entrusted with the responsibility and duty of re-appraising and re-appreciating the factual materials. That is precisely what it has done and after analyzing the transactions in their entirety, concluded that the Assessing Officer was wrong in concluding that frequency of transactions was very high. The reasons assigned, therefore, do not raise any substantial questions of law. They are consistent with the factual material placed before the Tribunal. The Appeal does not raises any substantial questions of law. It is, accordingly, dismissed. No costs. (A. K. MENON, J.) (S.C. DHARMADHIKARI, J.) wadhwa