TMI Blog1971 (9) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... various companies including National Pipes and Tubes Co. Ltd., Indian Conduit Pipes Ltd. and National Rolling and Steel Ropes Ltd. During the assessment year 1957-58, the accounting year being the financial year ending March 31, 1957, the assessee sold 20,000 shares of the first company, 14,150 of the second company and 10 preference shares of the third company. The sale of the shares of the first company resulted in a profit of Rs. 1,29,401 whereas the sale of the shares of the other two companies led to a loss of Rs. 3,374. Thus, there was a net profit of Rs. 1,26,027 from the sale of shares of all the three companies. The total number of shares in the first company acquired by the assessee during the years 1943 to 1953 aggregated to 60, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in question had been credited to the profit and loss account. There was a difference of opinion between the Judicial Member and the Accountant Member of the Tribunal. The Judicial Member held that the assessee was trading in shares whereas the Accountant Member took the contrary view and held that the department had failed to bring on record any evidence to show that the purchase of shares in managed companies had been made with an intention of selling them at a profit. Ultimately, the case was referred to the President of the Tribunal under section 5A(7) of the Income-tax Act, 1922. The question which was referred to him was whether the assessee was or was not a dealer in shares during the relevant accounting period. The President of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... went beyond the matters which were the subject-matter of controversy before the departmental authorities and the Appellate Tribunal. It was never the case of the assessee at any stage that although it was a dealer in shares those shares which were the subject-matter of sale were held by way of investment. It had maintained throughout that all the shares were held by it as an investor and that it could not be regarded as a dealer because the shares did not form its stock-in-trade. That case of the assessee was negatived because of the extensive dealings and other facts and circumstances which were taken into consideration. The figure of purchases and sales as also of the profits relating to the years 1954 to 1957 which were set out in the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it could be established that those shares had been treated in its books differently from other shares held by it. The mere fact that the sale proceeds were paid into the overdraft account in which admittedly proceeds of sale of all the shares held by the assessee were being credited as and when the sales were made and that these shares had not been sold with any amount of frequency could not be regarded as sufficient to establish that these shares had been held by way of investment. Even otherwise it was for the Appellate Tribunal to give its decision on facts and since no decision was invited from the Tribunal as to whether the shares in question had been held by way of investment it was not open to the High Court to give its finding on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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