2016 (3) TMI 464

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....on the facts and in the circumstances of the case and in law, the Tribunal was correct in ignoring the fact that the respondent company as per its Memorandum of Association was primarily to deal with shares and therefore its income would be that of business rather than on capital gains as held by the CIT(A)? (ii) Whether on the facts and in the circumstances of the case, the Tribunal was justified in ignoring the fact that the respondent company in a subsequent assessment year namely A.Y. 2008-09 has accepted the treatment of these sales as business income and following upon the rule of consistency this income be treated as business income for AY 2007-08 also." 3. The respondent assessee is mainly engaged in the business of dealing in....

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....y its order dated 15th September, 2010 the CIT(A) held that where the shares were held for a period of 30 days or less and claimed as investments, would be excluded from the investment portfolio and brought to tax as business income. However, save and except the above, it held that other shares which were shown as investments would be entitled to the benefit of short term capital gains and long term capital gains as claimed by the respondent assessee. It has accepted the respondent assessee's justification to be investor in shares even when it deals in them, while recording a further fact that no borrowed funds were used in making the investments. Thus, partly allowing the respondent assesse's appeal by its order dated 15th Septembe....

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....s in investments. Infact, this was not an issue even raised by the Revenue before the Tribunal as no mention of the same is found either in the impugned order or in the grounds of the Revenue before the Tribunal. Thus, the question as framed does not arise from the impugned order of the Tribunal. Accordingly, question (i) as framed does not give rise to any substantial question of law. Thus, not entertained. 9. Re. Question No.(ii) : Mr. Pinto, learned Counsel for the Revenue in support of question no.(ii) relied upon the Assessment order passed for the subject Assessment Year 2008-09 to contend that the respondent assessee therein has accepted the profits earned on sale of shares is to be taxed under the head of profit and gain of bu....