TaxTMI 
TaxTMI 
TaxTMI 
2015 (8) TMI 233
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....rises for our consideration in both the appeals is whether the Tribunal was correct in treating the income arising on purchase and sale of shares as business income and not as income from investments under the head 'capital gains' as sought by the Appellants. 3. Admittedly, the facts in both the appeals are identical and therefore, for the sake of convenience, we shall refer to the facts as arising in Income Tax Appeal No.1670 of 2013 i.e. the appeal of the father. 4. For the subject Assessment Year, the Appellant filed its return of income declaring a total income of Rs. 1.16 Crores. During the assessment proceedings, the Assessing Officer found that an amount of Rs. 21.37 lakhs offered as short term capital gains earned through ....
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..... Gopal Purohit 336 ITR 287 the view taken in the earlier Assessment Year should be followed in the subject Assessment Year also. The Tribunal on consideration of the facts found no reasons to disturb the order of the lower authorities. Thus, the income of Rs. 81.71 lakh was brought to tax under the head 'business income' and not as 'short term capital gains' as claimed by the Appellant. 7. Mr. Shreedharan, learned Sr. Counsel appearing for the Appellant contends that 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 ....
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....essing Officer has on examination of the manner in which the Appellant carried out its activity of purchase and sale of shares found facts as under: "(a) The assessee has carried out transaction with as many as six brokers, which normally an investor never do. This proves beyond doubt that the assessee is running a full fledged business of share trading. Hence, the transaction carried out cannot be treated as capital gain. (b) In majority of the cases, shares are purchased in 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 rupee....
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....ons 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 Rs. 4.89 Crores and in case of son was Rs. 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. 11. 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 Appellant's conduct, observes that notwithstanding ....
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....decision of the Apex Court in Holck Larsen (supra) which had been relied upon, would have no application to the facts of the present case. In the above case, the Supreme Court observed that two questions arise in cases where the Courts have to determine whether the purchase and sale of shares was as an investor or as trader. The first question is according to the Court is whether the findings of the Tribunal is based on evidence from which the conclusions 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 b....