:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.598 OF 2001 The Commissioner of Income Tax. ..Appellant. Vs. M/s. Zail Corporation. ..Respondent. Mr.P.S.Sahadevan for the Appellant. CORAM : F.I. REBELLO & R.S. MOHITE, JJ. DATED : 22nd January,2008 PC : 1. The question of law as formulated in Para-5 is as under. Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the shares held by the assessee were investment and not stock in trade as held by the A.O. and consequently holding that the distribution of the shares amongst the members should be brought to tax under the head capital gains and allow deduction under Section 48(2) of the Income Tax Act? 2. The learned Tribunal by its order disposed of the appeal preferred by the present respondent and several other assessees. The assessees are the Association of persons (A.O.P.). There is a finding recorded that the shares were held right through as investment with the :2: assessee was enjoying only the dividend income as an investor, the sale of those shares can only give rise to liability of capital gains and cannot be considered as business. The learned Tribunal has relied on its earlier order in the case of Atlas Corporation which order is reported in 57 ITD 139. 3. Considering the above finding of fact recorded by the Tribunal, in our opinion, the question of law as framed would not arise and consequently the appeal is dismissed. (R.S. MOHITE, J.) (F.I. REBELLO, J.)