TMI Blog2011 (8) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue, read as follows:- 1. The order of the learned CIT(A) is opposed to law and facts of the case. 2. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in treating receipt of ` 26,99,76,000 received on transfer of land as non-taxable without appreciating the fact that the assessee is not the residuary legatee of late Shri E.F. Dinshaw and the control, management and ownership of the properties consisting of the estate of Shri E.F. Dinshaw vests totally with the assessee. 3. On the facts and in the circumstances of the case and in law, the learned CIT(A) ought to have treated the receipts either as short term capital gain or adventure in the nature of trade. 4. On the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he extent the source of the receipts were advances, the same ought to be excluded in computing the quantum by the appellant in terms of the indenture. 4. Before us, Mr. S.E. Dastur, learned Sr. Advocate, appeared on behalf of the assessee. Mr. Subachan Ram, Departmental Representative, appeared on behalf of the Revenue. 5. Both the parties submit before the Bench that grounds no.2 and 3 of Revenue s appeal stand covered by the decision of this Bench of the Tribunal in ITA no.4573 and 4424/Mum./2008, order dated 15th July 2011, in assessee s own case. On a query from the Bench, both the parties submitted that the facts, the order of the Assessing Officer, the order of the Commissioner (Appeals) as well as the arguments of both the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm capital gain on units of Mutual funds exempt u/s 10(38) 45,54,272 2. Short term capital gain on shares u/s 111A 36,72,682 3. Short term capital gain in shares through PMS u/s 111A 58,91,164 4. Short term capital gain in units in mutual funds u/s 111A 115,63,269 5. Short term capital gain on shares mutual funds u/s other than sec. 11A 59,77,686 Less: B/F short term capital loss set-off 45,17,236 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear also invested ` 5 crores each in 3 PMS schemes, of DSP Merill Lynch, HDFC and Kotak Securities, with the objective of return by way of dividend, capital growth / appreciation. All the said 3 schemes are discretionary i.e., to say that the appellant has not withdrawn any funds from the said schemes in the year under assessment. 8. Learned Departmental Representative s argument is that the assessee s investment are to be considered as adventure in the nature of trade and profit from sale of securities should be considered as business income assessable under the head Income From Business . He referred to Page-23 of the assessment order and points out that the assessee had purchased 17 shares and sold 11 shares on his own i.e., with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e regularly dealing in units of mutual funds. Referring to the large number of purchases made by the assessee, he submits that this clearly indicates the intention of the assessee to park his funds in shares for earning dividend and for capital appreciation therefrom. He submits that large amounts were invested and there was no turnover at all. He relied on number of case laws and distinguished case laws relied upon by the learned Departmental Representative. 10. Rival contentions heard. On a careful consideration of the facts and circumstances of the case and on perusal of the papers on record, as well as the case laws cited before us, we find that this is a factual matter and reference to numerous case laws by both the parties is not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of H. Holck Larsen, 160 ITR 67 (SC) (supra) wherein the observation was that the High Court made a mistake in observing whether transaction of sale and purchase of shares were trading activity or whether those were in the nature of investment. The Court has said that such a question was not question of law but mixed question of law and fact. Therefore, on due consideration of the relevant facts, the result was that the assessee was a prudent investor and not of a plunger in the waters of trade. The intention of the assessee was considered as that of nursing of the investment. 26. Before we conclude significant fact does need some deliberation and that is about the method of valuation of stock of shares reflected in the balance sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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