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TMI Blog1971 (9) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... al year ending March 31, 1957, the assessee sold 20,000 shares of the first company, 14,150 of the second company and 10 preference shares of the third company. The sale of the shares of the first company resulted in a profit of Rs. 1,29,401 whereas the sale of the shares of the other two companies led to a loss of Rs. 3,374. Thus, there was a net profit of Rs. 1,26,027 from the sale of shares of all the three companies. The total number of shares in the first company acquired by the assessee during the years 1943 to 1953 aggregated to 60,700 shares. Out of this holding 10,700 shares were sold in 1955 and 20,000 shares were sold during the year ending March 31, 1957. The profit that arose to the assessee on the sale of 10,700 shares in 1955 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee was trading in shares whereas the Accountant Member took the contrary view and held that the department had failed to bring on record any evidence to show that the purchase of shares in managed companies had been made with an intention of selling them at a profit. Ultimately, the case was referred to the President of the Tribunal under section 5A(7) of the Income-tax Act, 1922. The question which was referred to him was whether the assessee was or was not a dealer in shares during the relevant accounting period. The President of the Tribunal agreed with the Judicial Member that the assessee was a dealer in shares which were confined to the shares of the managed companies. Ultimately, on the Tribunal being moved, the following questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealer in shares those shares which were the subject-matter of sale were held by way of investment. It had maintained throughout that all the shares were held by it as an investor and that it could not be regarded as a dealer because the shares did not form its stock-in-trade. That case of the assessee was negatived because of the extensive dealings and other facts and circumstances which were taken into consideration. The figure of purchases and sales as also of the profits relating to the years 1954 to 1957 which were set out in the order of the President of the Tribunal justified the view that although up to a certain point of time it had been assessed as an investor, the multiplicity of the transactions occurring successively over the ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeds of sale of all the shares held by the assessee were being credited as and when the sales were made and that these shares had not been sold with any amount of frequency could not be regarded as sufficient to establish that these shares had been held by way of investment. Even otherwise it was for the Appellate Tribunal to give its decision on facts and since no decision was invited from the Tribunal as to whether the shares in question had been held by way of investment it was not open to the High Court to give its finding on that question which was essentially one of fact and which it was within the jurisdiction of the Tribunal to determine. In the result the appeal succeeds and is allowed with costs. Instead of the answer return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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