TMI Blog2014 (5) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... Cotton Mills Supply Agency Ltd. [1975 (7) TMI 2 - SUPREME Court] all along the assessee demonstrated that she had an intention to maintain two separate portfolios wherein there was no mixing up in the two portfolios remains unrebutted on record as nothing to the contrary has been placed by the Revenue - there is no intermingling of shares in the two portfolios has been verified by the CIT(A) after considering the balance sheets of the last 7 years and also the P&L A/c – no substantial question of law arises for consideration –- Decided against Revenue. - ITA 206/2014 - - - Dated:- 6-5-2014 - S. Ravindra Bhat And Vibhu Bakhru,JJ. For the Appellant : Ms. Suruchi Aggarwal, Sr. Standing Counsel with Mr. Judy James, Jr. Standing C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he balance sheet as on 31.03.2006, the investment shown was Rs.3,67,81,204/- and the closing stock was Rs.1,59,75,712/-. The closing stock related to traded shares, whereas the investments related to house property, bank bonds and various shares that were sold during the year and for which capital gain had been claimed. The CIT (A) further found that the assessment year was not the first time when the assessee has shown separate assessment in her balance sheet; he also verified the profit and loss account of the assessee for the previous 7 years. Thereafter, he applied the law declared by the Courts on the subject and also noticed the CBDT Circular No.4/2007 which carved out the principles applicable to determine whether a profit or income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon. The number of shares, the date of purchase and dates of sale at the prices of specific number of shares as set out in the impugned order in para 3.1 at page 2 of the order extracted at page 6 of this order has not been shown to be incorrect by the Revenue. Considering the entire arguments advanced on behalf of the Revenue it is seen that none of these facts are disputed neither the dates are disputed nor the nos. of shares nor the price of sale or purchase. The department has also not attempted to upset the finding of the CIT(A) inasmuch as that the assessee was maintaining two separate portfolios one for Investment and one for business. Similarly the finding that there was no intermingling of shares in the two portfolios and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s wherein there was no mixing up in the two portfolios remains unrebutted on record as nothing to the contrary has been placed by the Revenue before us. It is seen that none of these relevant facts have been assailed by the Revenue and only general arguments have been advanced. It is further seen that the finding that there is no intermingling of shares in the two portfolios has been verified by the CIT(A) after considering the balance sheets of the last 7 years and also the P L A/c. Nothing has been placed before us by the Revenue in order to take a contrary view. In fact the CIT (A) takes into consideration the fact that the AO was himself contradicting his own action because if he was of the opinion that there was only one portfolio then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sell in a rising market is a ground to interfere with the finding to our minds may have relevance if the case of the Revenue is that the assessee is manipulating the market which admittedly is not the case of the department. The judgements and the case laws relied upon by the Ld. CIT DR, it is seen operate on entirely distinct and separate peculiar facts and circumstances, the arguments that the AO is not fettered by technical rules of evidence is a settled legal position and it is an accepted legal position that all relevant circumstances which appear on the issue and the material which may not strictly be evidence under the Indian Evidence Act can be taken into consideration by the AO to inquire probe and consider however in order to lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgements to take a contrary view where in the facts of those cases intermingling of the shares is an accepted fact is of no help to the Revenue as the basic fact to trigger the applicability of those principles is conspicuous by its absence. The very basic fact not having been established by the Revenue that there was intermingling of shares amongst other accepted facts as discussed earlier makes the attempt to rely on legal principles on different facts a wasted exercise. In the absence of any fact in contradistinction to the finding concluded in the impugned order. We find no good reason to deviate from the finding and conclusion arrived at the impugned order. Being satisfied by the reasoning and finding arrived at on the facts as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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