2015 (4) TMI 264

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....Sri A Shankar & Sri Lava, Advs. ORDER The Revenue has preferred this appeal against the order passed by the Tribunal setting aside the order passed by the Commissioner under Section 263 of the Income Tax Act, 1961, restoring the order of the Assessing Authority. 2. The Assessee Company is in the business of financial investments. During the year 2003-04, the assessee company earned capita....

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.... Tax invoking his jurisdiction under Section 263 of the Income Tax Act, issued a notice calling upon the assessee to show cause as to why the amount claimed as Capital Gain should not be treated as income from business. The assessee filed their objection statement and pointed out the shares sold during the financial year 2002-03 was one solitary transaction and the shares sold were acquired a deca....

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....t a capital gain, has to be ascertained by him. Therefore it is clear that the Commissioner was unable to determine whether the assesse's sole transaction leading to rendering of long term capital gains was whether part of assessee's income holding shares as stock-in-trade or as investment. 5. The view as taken by the Assessing Authority is a possible view. When two views are possible, ....

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....s correct in holding that the income from sale of shares has to be assessed under the head 'Capital Gains' when the Assessing Officer has not applied his mind regarding the activities carried on by the assessee and objections of the assessee stated in the memorandum of association before arriving at a conclusion that the income has to be assessed under the head 'Capital Gains'? ....