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2019 (5) TMI 196 - HC - Income TaxNon recording of finding of facts - order is perverse and give rise a substantial question of law - income from sale of shares - assessee is investor in this year also or not - capital gains or business income - HELD THAT:- It is true that in respect of the assessment year 2005-2006, the Division Bench has not interfered with the finding of the tribunal that the assessee was an investor and that the gain made out of shares and transaction was a long-term capital gain. What the assessee had to prove before the lower adjudication authorities was that it continued to be an investor in the subject assessment year 2006- 2007 and continued to make capital gains in the manner it did in the assessment year 2005-2006. This finding of fact has not been entered at any stage of the proceedings. In its absence the impugned order of the tribunal dated 20th January, 2012 is erroneous. There is perversity in the adjudication of the case. A substantial question of law arises. The above fact needs to be determined. The order of the tribunal dated 20th January, 2012 is set aside in respect of this issue. The issue is remanded to the tribunal to make a fresh adjudication with reasons in accordance with law. As this appeal is pending for a long period of time, we are not asking the tribunal to remand the matter back to the lower adjudication authority. The tribunal will determine the question itself and shall pass a reasoned order within six months from the date of communication of this order.
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