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2010 (6) TMI 379 - HIMACHAL PRADESH HIGH COURTNotice u/s 148 - income from shares, whether business income or capital gains - framing of question of law before HC - Whether the Company dealing with the share holding can change its stand by converting certain shares to be their long term capital asset? - Held that: - it is the duty of the Court to do justice and in case a substantial question of law arises, it would be very extremely unfair not to permit the party to raise the substantial question of law only on the ground that such substantial question of law was not framed at the stage of admission of the appeal. The law is very well settled that the onus is on the assessee to show that his investment is a long term investment. Whether a particular holding of shares is by way of long term investment or is a stock in trade is a matter solely within the knowledge of the assessee who holds the shares. - It is apparent that due to issuance of bonus shares and splitting of shares the value of the shares of Information Technology rose sharply and realizing that the company would be liable to pay 30% tax, the assessee started claiming the profits realized from sale of these shares as long term capital gains. - After going through the entire record the revenue authorities have come to the conclusion that the shares of Information Technology was purchased by the assessee not by way of assessment but by way of trading. This is a pure finding of fact and not of law. It is true that the principles of law have to be applied and the question as to whether certain shares had been purchased by way of trade or by way of investment may be a mixed question of fact and law but if the authorities have properly considered the legal position then the resultant finding is basically a finding of fact. - Decided in favor of revenue.
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