2016 (7) TMI 961

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....e order of the Assessing Officer. 2. While admitting the matter on 06.03.2007, the following substantial question of law was framed by the Court for consideration :- "Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that all the shares sold by the assessee were held by him on business account and not on investment account?" 3. The facts of the case are as under :- The appellant - assessee sold in the Assessment Year : 1993-1994, 600 TISCO shares which she had acquired in Financial Year : 1989-1990 and 1700 Essar Shipping shares which she had acquired on 09.07.1991. In her return, she showed a capital gain of Rs. 3,53,964/= by taking the index cost thereof as the cost price. The ....

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.... be an investor and there is no justification for holding her to be a trader without seeing the facts of the year in which she purchased the shares, sold in the Assessment Year : 1993-1994 and instead seeing the facts of the Assessment Year : 1993-1994, which also did not justify the finding of a trader. It is further submitted that the Tribunal failed to appreciate that in a case where the assessee is accepted to be an investor of shares for a long past, a heavy onus lies on the Department to prove that the shares so held on investment account were converted into stock-in-trade by the assessee, and that this onus was not discharged by the Department in the facts of the case. 5. On the other hand, learned Counsel for the respondent - Dep....

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....he assessee in dealing with the shares and debentures, we are of the view that the Assessing Officer was perfectly justified in holding the income from sale of shares / certificates is the "income from business" and not "capital gains", as claimed by the assessee. Therefore, we reverse the order of the CIT(A) and restore that of the Assessing Officer on the issue." 6. We have heard learned Counsel appearing for the respective parties and perused the records of the case. It is not in dispute that in the previous years, the assessee was held to be an investor. The loan availed by the assessee was a long term loan and at Paragraph 6, the Tribunal has right observed as under :- "6. The learned AR assessee also relied on the decision of th....