Court upholds Tribunal's decision on shares as investments, not stock in trade. Assessment order cannot be modified.

COMMISSIONER OF INCOME TAX, KOLKATA-XII Versus HIMALAYA FINANCE AND INVESTMENT COMPANY

COMMISSIONER OF INCOME TAX, KOLKATA-XII Versus HIMALAYA FINANCE AND INVESTMENT COMPANY - TMI Issues involved: Condonation of delay, nature of purchase of shares (investment or trading), application of Section 5 of the Limitation Act, assessment order modification u/s 263, error in tribunal's order, legality of tribunal's order, substantial question of law.

Condonation of delay: The Court, after hearing the Advocate for the appellant and perusing the application for condonation of delay, was satisfied with the grounds stated in the petition. Accordingly, the delay was condoned, and the application under Section 5 of the Limitation Act was allowed. G.A.No.1271 of 2008 was disposed of.

Nature of purchase of shares: The Tribunal extensively dealt with whether the purchase of shares was for investment or trading purposes. It was noted that if shares were accepted as investment in one year and the facts remained the same in subsequent years without any change in the assessee's operations, the shares could not be treated as stock in trade. The Tribunal found that the shares were investments based on various factors, including dematerialization, source of funds, and receipt of substantial dividends. The Court held that the Tribunal's decision was reasonable and not erroneous, citing the principle that every loss of revenue due to an order of the Assessing Officer cannot be considered prejudicial to the interests of the Revenue unless the order is unsustainable in law.

Assessment order modification u/s 263: The Court determined that the Assessing Officer's view in accepting the shares as investments was a reasonably possible view and not erroneous. Therefore, the assessment order could not be modified u/s 263. The Court referenced a decision of the Hon'ble Apex Court to support this conclusion.

Substantial question of law: After reviewing the Tribunal's order and considering the Supreme Court decision, the Court found no substantial question of law involved in the appeal. Consequently, the appeal was dismissed, and all parties were directed to act on a xerox signed copy of the order. Urgent xerox certified copies of the order could be supplied to the parties upon compliance with formalities.