1 itxa 16-11 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.16 OF 2011 The Commissioner of Income Tax-13, Mumbai ..Appellant. V/s. Dinesh B. Shah ..Respondent. Mr. Suresh Kumar for the appellant. Mr. Prakash Shah i/b. PDS Legal for the respondent. CORAM : J.P. DEVADHAR AND A.A.SAYED, JJ. DATED : 22ND JULY, 2011 P.C. :- 1. The question of law raised by the revenue in this appeal reads thus:- " Whether on the facts and circumstances of the case and in law, the Tribunal is right in holding that short term capital loss of Rs. 42,78,205/- and long term capital loss of Rs.28,22,211/- is the business loss ignoring the fact that the in the balance sheet the share transaction is shown as investment and not as stock-in-trade ? 2. The ITAT in para 4 of its judgment has held that the share 2 itxa 16-11 transaction entered into by the assessee were small compared to the construction activities which were its main business and that shares had been purchased out of its own funds. The CIT(A) as well as ITAT have recorded finding of fact that the share transactions were investment activities and not trading transactions, therefore, the loss arising out the said transaction were liable to be assessed either as short term capital loss and long term capital loss. The decision of the ITAT is based on finding of fact and no question of law arises from the order of ITAT. The appeal is dismissed with no order as to costs. (A.A. SAYED, J.) (J.P. DEVADHAR, J.)