2022 (4) TMI 445

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....sessment order framed u/s 143(3) of the Income Tax Act, 1961 (in short the "Act") dated 28.04.2017 by ACIT, Circle-50, Kolkata. 2. The assessee is in appeal before the Tribunal raising the following grounds: "1. For that on the facts and in the circumstances of the case, the Ld. CIT(A) grossly erred in confirming AO's action of treating gains made by the assessee to the tune of Rs. 71,22,139/- as business income instead of short term capital gain. 2. For that the Ld. CIT(A) failed to appreciate that shares in question were held by the assessee as investments and accordingly reflected as "Investments" in the Final accounts. 3. The appellant craves leave to add further grounds of appeal or alter the grounds at the time of hearing." ....

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....see is consistently showing income from purchase and sale of shares as long term capital gain and short term capital gain computed as per the period of holding. Perusal of the balance sheet also shows that no major loans have been taken during the year and only an interest of Rs. 6,929/- has been paid whereas the assessee has Rs. 2,94,21,139.60/- in credit of her own capital which in itself is sufficient to cover the investment in shares and other transactions of purchase and sale of shares carried out during the year. Undoubtedly the transactions of purchase and sale of shares have been done consistently round the year but generally the shares have not been sold on the same day, nor any futures & options transactions/intraday trading have ....

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....the revenue has not been able to find fault from the evidence adduced then the mere fact that there were 1000 transactions in a year or the mere fact that the majority of the income was from the share dealing or that the Managing Director of the assessee is also a Managing Director of a firm of share brokers cannot have any decisive value. The question essentially is a question of fact. The CIT Appeal and the learned Tribunal have concurrently held against the views of the Assessing Officer. On the basis of the submissions made by the learned Advocate for the appellant, it is not possible to say that the views entertained by the CIT Appeal or the learned Tribunal were not a possible view. Therefore, the judgment cannot be said to be pervers....