2019 (3) TMI 65

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....e may refer to the facts arising in Income Tax Appeal No.1281 of 2016 which concerns Assessment Year 2007-2008.   2. These Appeals are filed by the Appellant - Assessee against the Judgment dated 01/01/2016 of the Income Tax Appellate Tribunal (in short "the Tribunal"), raising the following question for our consideration: "Whether on the facts and in the circumstances of the case, and in law, the Tribunal was justified in directing the Respondent to treat the gain of Rs. 20.91 crores arising on sale of share as Business income as against Short Term Capital Gain declared by the Appellant." 3. The issue arises out of the Judgment of the Tribunal concerning the question of treatment to the gain earned by the Assessee out of the ....

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....in the earlier and subsequent years can be one of the deciding factors, but in itself it is not the conclusive proof. Unless and until it is not proved that the facts of a particular A.Y. were identical to facts of other years. Courts have held that a single transaction can be held as business transaction and a series of transactions can be held to a capital gain transaction. In short the facts of a particular year have to be tested on the touchstone of the general principles laid down by various authorities and summarized in the Circular issued by the CBDT. We find that out of the total profit of 21.05 Crores the assessee had earned profit of Rs. 20.09 Cores from purchase and sale of one script. In case of Glenmark Pharma Ltd., Reliance....

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....sessee. The Tribunal noted frequency of purchase and sale of shares, quantum of sale and purchase of shares and the relevant gains besides other factors in order to come to a conclusion that the assessee had intended to engage itself in the business of buying and selling the shares. We do not find any error in the view taken by the Tribunal, since the Tribunal had noted in its Judgment all the factors in coming the conclusion, which are factual in nature, and with respect to which no perversity is demonstrated. 5. The learned counsel for the assessee however contended that in the later year the assessee had suffered loss in the process of selling the shares which was declared as cpital loss. The Assessing Officer in the assessment after ....