IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 6TH JANUARY 2011 / 16TH POUSHA 1932 ITA.No. 17 of 2010() -------------------- ITA.714/COCH/2007 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/APPELLANT: ------------------------------ THE COMMISSIONER OF INCOME TAX, COCHIN. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT: --------------- M/S.MUTHOOT LEASING & FINANCE LTD., BANERJI ROAD, KOCHI. ADV. SRI.P.BALAKRISHNAN (E) SRI.V.SREEKUMAR SRI.MOHAN PULIKKAL THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 06/01/2011, THE COURT ON 06/01/2011 DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & M.L.JOSEPH FRANCIS, JJ. .................................................................... I.T. Appeal No.17 of 2010 .................................................................... Dated this the 6th day of January, 2011. JUDGMENT Ramachandran Nair, J. Heard Standing Counsel for the appellant and Adv. Sri.P.Balakrishnan appearing for the respondent-assessee. 2. After hearing both sides and after going through the Tribunal's order, we do not find the question raised by the Revenue is a substantial question of law because all what the Tribunal has held is that the purchase and sale of stock by the assessee is a business transaction and cannot be treated as sale of capital asset. It is seen from the orders that for the two preceding assessment years 2001-2002 and 2002-2003 the department accepted the assessee's claim that the transaction is trading and the loss is a business loss. In this year also, the position is not different in as much as the assessee set off loss in stock trading against business income treating it as a business loss. Admittedly assessee has no opening stock or closing stock of any shares and so much so, they were treating it as purchase and sales 2 without retaining the asset for any appreciable period. Consequently we uphold the order of the Tribunal and dismiss the departmental appeal. C.N.RAMACHANDRAN NAIR Judge M.L.JOSEPH FRANCIS Judge pms