TMI Blog2015 (8) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order of the Tribunal also records that the number of transactions carried out by two Appellants were 100 and 120 shares respectively in a very short period. Further, the turnover in case of the father was ₹ 4.89 Crores and in case of son was ₹ 4.12 Crores. All these were indicative of there being a regular systematic activity which is the activity of business being pursued by the Appellant. We do not find any merit in the submission that the Tribunal in the impugned order while dealing with the issue of charging tax under the head 'business income' or as 'capital gain' was influenced by the fact that some transactions were found to be bogus. In fact, the impugned order after making the above observation with regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant filed its return of income declaring a total income of ₹ 1.16 Crores. During the assessment proceedings, the Assessing Officer found that an amount of ₹ 21.37 lakhs offered as short term capital gains earned through one M/s. Mahasagar Securities Limited were not genuine being mere hawala entries. Thus, the amounts of ₹ 21.87 lakhs was brought to tax as income from other sources. So far the balance amount of short term capital gains of ₹ 81.71 lakhs is concerned, the Assessing Officer looking at the volume, frequency, the tax audit report as well as the fact that loan was taken to purchase shares, held the same was taxable under the head 'business income'. On the aforesaid exercise, the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a substantial question of law arises inasmuch as on the issue of taxability of income as capital gains or business income, the impugned order has been influenced by the fact that the Appellants dealing of shares through one M/s. Mahasagar Securities Ltd., was bogus. Thus, the impugned order stands vitiated as it has been influenced by unrelated facts.Further, it is submitted that the CIT(A) has not rendered any finding with regard to the issue of the nature of income on sale and purchase of shares by the Appellant. It is silent as to whether it is taxable as business income or under the head 'capital gains.' Further, it is submitted that in view of the decision of this Court in Gopal Purohit (supra), the authority should have follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... huge quantity and holding period of shares were not significant. There are hardly any case where shares have been purchased and held for more than 6 months, 8 months or 1 year. (c) Further, the value of the shares transacted by the assessee runs into crores of rupees. It cannot b e said that the assessee has carried out investments in those shares. (d) Further, the assessee has also taken loans against purchase of shares on which even interest of ₹ 11,72,892/- has been paid. Hence it cannot be said that the assessee is doing investments. (e) It may also be noted that the assessee himself was classified the transaction in shares as Share Trading in the Tax Audit Report, filed with the return of income where nature of business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging tax under the head 'business income' or as 'capital gain' was influenced by the fact that some transactions were found to be bogus. In fact, the impugned order after making the above observation with regard to the Appellant's conduct, observes that notwithstanding the same, the income on purchase and sale of shares is taxable as business income. The decision in the case of Gopal Purohit (supra) is completely distinguishable. In the present case, the assessee has not before the authorities led any evidence to show that the transaction in the earlier assessment and the present assessment years are identical, calling for the same treatment in view of the decision of this Court in Gopal Purohit (supra). This is particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s arrived at by the Tribunal can be said to be either reasonable or possible. If the conclusions drawn by the Tribunal are pure inferences of facts, then no question of law arises and no occasion arises for interference with the order of the Tribunal. If, however, the conclusion arrived at by the Tribunal is such that no reasonable man could possibly have arrived at, then such a conclusion would be without any evidence and perverse in law. The Court further observed that if there is material to support the conclusion, the fact that another Court might have arrived at a different conclusion, is not a relevant factor. The second issue that would arise is the legal principles applicable to determine the nature of the transactions i.e. dealer i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
