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TMI Blog2014 (7) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the revenue in the present memo of appeal itself and in that regard our attention was invited to para 6.1, 6.2 and 6.3. They read as under: "6.1 Whether, on the facts and in the circumstances of the case, the Tribunal, in law, was right in holding that the nature of the transaction representing shortterm capital gain is investment and not trading and allowing the claim of the Assessee? 6.2 Whether, on the facts and in the circumstance of the case, the Tribunal, in law, was right in setting aside the issue of disallowance under section 14A to the file of the AO to decide the issue afresh in view of the decision of the jurisdiction of High Court in the case of Godrej & Boyce Manufacturing Pvt. Ltd. V/s. ACIT (328 ITR 81)? 6.3 Whether, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s huge. The assessee has held little over 4 scrips for a period of more than 6 months during the year and 5 scrips have been held for 3 to 5 months, while the remaining have been sold within a period of 30 days. The assessee, therefore, had no intent of holding on to the shares. The assessee has made massive borrowing to fund the investment portfolio so as to fulfill the requirement of trading. The details of borrowing are referred by Mr. Malhotra and he submits that the Assessing Officer has rightly summed up the calculation at running page 28 para 3.10 of his order. These findings of fact have been affirmed by the Commissioner and with regard to para1.5 of the Commissioner's order, running page 44 has been referred to. Mr. Malhotra, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that Tribunal's order refers to the admitted and undisputed facts, and therefore, its conclusion cannot be termed as perverse or vitiated by an error of law apparent on the face of the record. He, therefore, submits that neither of the questions can be termed as substantial question of law and the appeal should be dismissed. 7] With the assistance of the learned counsel appearing for the parties, we have perused the findings of the Assessing Officer, the Commissioner of Income Tax (Appeals) and the Income Tax Appellate Tribunal. With regard to the first question, the Tribunal has referred to and extensively the facts. It has also referred to the rival contentions and arrived at a conclusion that the Assessing Officer having recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than the investment made by the assessee and it is enough for indulging in the trading transactions. In such circumstances and going by the frequency of the transaction and applying the relevant tests, the Tribunal rightly reversed the findings of fact . The Tribunal is a last fact finding authority and in this case we do not find that it is reversing the concurrent findings merely because another view is possible. If concurrent findings have been reversed because the materials and admitted facts have not been appreciated in the correct prospective, then, it was permissible for the Tribunal to step in and reverse the finding of the Assessing Officer and the Commissioner of Income Tax. 8] With regard to third question, it has been held by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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