TMI Blog2004 (8) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... spute is as to whether the income arising to the assessee on sale of shares should be assessed under the head capital gains as held by the ld. CIT(A) or the same should be assessed as business income as contended by the revenue. 3. Facts of the case leading to this dispute briefly are that the assessee carried on business in the name of M/s. Sharad Sales and M/s. Keshav Agencies. Under the name of M/s. Sharad Sales the assessee carried on the business of dealing in motor parts. In the name of M/s. Keshav Agencies the assessee dealt in shares to only of 2 companies viz., M/s. Goetz and M/s. Goetz Financial Services Ltd. Income from both these proprietary concerns was disclosed as business income. Besides the assessee also carried on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgments in CIT v. Sutlej Cotton Mills Supply Agency Ltd. [1975] 100 ITR 706 (SC), G. Venkataswami Naidu Co. v. CIT [1959] 35 ITR 594 (SC), Raja Bahadur Visheshwara Singh v. CIT [1961] 41 ITR 685 (SC) and Rajputana Textile Agencies Ltd. v. CIT [1961] 42 ITR 743 (SC). He held that the assessee s transactions in shares of other companies were in the nature of investments and, therefore, the income arising on sale of such shares had rightly been offered by the assessee as capital gains. Aggrieved by this order the revenue is in appeal before us. 5. During the course of hearing before us the ld. DR argued that the fact of assessee being assessed under the head capital gains in the earlier assessment years should no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r who would sell the goods at profit at the earliest available opportunity. The ld. AR further argued that the assessee invested his own funds. The borrowed capital was utilized by the assessee for purchase of shares of Goetz (India) Ltd. only. Other shares were all purchased by the assessee on investment of his own funds. 7. We have carefully considered the rival submissions. It is not correct to say that profit motive alone would distinguish a transaction from investment to trading. Even in the case of investment there may be motive that the assessee should be able to sell the investment at a premium. When household savings are invested in gold etc. the profit motive is there but that does not make a householder a businessman trading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f hearing before us the ld. AR of the assessee argued that the borrowed funds had been credited to the assessee s books of account and utilized for the purpose of business of the assessee. On these facts we direct the Assessing Officer to allow the assessee one more opportunity to produce the relevant documents to establish the fact of borrowing and payment of interest to the bank. Thereupon the Assessing Officer may allow the assessee the necessary deduction in relation to interest paid. 11. Third ground is directed against the addition of Rs. 48,536. It is seen that in the order of ld. CIT(A) XXIX, New Delhi dated 5-11-1999 there are no directions contained in relation to addition of Rs. 48,536. We, therefore, do not find any infirmit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ld. CIT(A) XXIX, New Delhi dated 21-8-2000 in the case of the assessee in relation to assessment order under section 143(3) for assessment year 1996-97. 16. In this appeal the assessee has taken as many as six grounds of appeal. However, during the course of hearing before us the ld. AR of the assessee pressed only ground of appeal No. 3 i.e. disallowance of Rs. 40,500 being brokerage paid on financiers. The ld. CIT(A) has rejected the assessee s ground of appeal relying upon his order for assessment year 1995-96. The case of the assessee before us is that amount paid was in fact interest on loans though mentioned as brokerage. In our view, the correctness of the contention of the assessee is required to be verified. We, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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