TaxTMI 
TaxTMI 
2016 (8) TMI 266
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....ITA No.2463/Ahd/1998 raising the following substantial question of law: "(i) Whether on the facts and in the circumstances of the case the Tribunal was right in law in upholding the order of the Commissioner under section 263 ? (ii) Whether on the facts and in the circumstances of the case the Tribunal was right in law in holding that the Commissioner had held that the shares sold were stockintrade and not investment ?" 2. Briefly stated, the facts are that the assessee is a widely held public limited company engaged in the business of trading in cement, paper, AC sheets, pipes, etc. In the Assessment Year 1994-1995, the assessee sold certain shares and claimed the same as capital gains, on which indexing benefit was allowed by the....
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....re sold within one year from their becoming capital asset. However, the Tribunal misunderstood the order of CIT(A) as if the CIT(A) never accepted the factum of conversion of shares to investment. 5.1 Learned counsel Mr. Shah placed reliance upon the decision of this Court in the case of Ranchhodbhai Bhaijibhai Patel v. Commissioner of Incometax, [1971] 81 ITR 446 wherein, it has been held that the only circumstance which must be satisfied in order to attract the charge to tax on capital gains u/s.45 is that the property transferred must be a capital asset at the date of transfer and it is not necessary that it should have been a capital asset on the date of acquisition by the assessee. It was further held that where the property transfe....
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...., it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Incometax Officer is unsustainable in law. (B) In Commissioner of Incometax v. Max India Ltd., [2007] 295 ITR 282 (SC), the Apex Court took a similar view. Similar view was taken by this Court in a decision rendered in the case of Commissioner of Incometax v. Nirma Chemicals Works P. Ltd., [2009] 309 ITR 67. In Commissioner of Incometax v. Vodafone Essar South Ltd., [2012] 28 taxmann.com 273 (Delhi), the High Court of Delhi also took similar view. 6. Mr. M.R. Bhatt, learned Senior Advocate appearing on behalf of the Revenue, submitted that shares and securities of Rs. 47,00,048.58 were shown in the total of closing st....
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....ted that both the CIT(A) and the Tribunal were justified in passing the impugned orders. 7. We have heard learned counsel Mr. J.P. Shah appearing on behalf of the assessee and learned Senior Advocate Mr. M.R. Bhatt appearing on behalf of the Revenue. Both the questions are interconnected and therefore, we shall decide them together. 8. It is a matter of fact that shares and securities of Rs. 47,00,048.58 were shown in the total of closing stock in the Trading and Profit & Loss Account of the assessee Company as on 31.03.1993, relevant to Assessment Year 1993-1994. Here, it is pertinent to note that on 31.03.1993 the Board of Directors of the assessee Company adopted a Resolution to the effect that stockintrade was converted into inves....