K.J. IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1263 OF 2008 The Commissioner of Income-tax 7 ) Mumbai )..Appellant V/s. M/s.Pikale Inds.Estate Mumbai )..Respondents ---- Mr.Suresh Kumar with Mr.P.S.Sahadevan for the appellant. Mr.K.B.Bhujle with Mr.G.S.Pikale i/by S.V.Pikale & Co. for the respondents. ---- Coram : F.I.Rebello & R.S.Mohite,JJ Date : 21.01.2009. PC 1. Revenue has preferred an appeal on the following questions :- (A) "Whether on the facts and in the circumstances of the case and in law, the Hon’ble I.T.A.T. is right in allowing the set off of long term capital loss despite the colorable device adopted by the assessee to avoid capital gain tax?" (B) "Whether on the facts and in the circumstances of the case and in law, the Hon’ble I.T.A.T.is rightin allowing various expenses aggregating Rs.54,584/- disallowed by the assessing officer and subsequently confirmed by the CIT(A) despite the fact that there was no business activitiesduring the year and the assessee has not been able to substantiate and justify the expenses with any support evidence?" 2. In so far as question-(A) is concerned, the : 2 : Tribunal recorded its finding in paragraphs-8 & 11 of its judgment. The fact that the shares have been sold through Stock Exchange to BSE is a finding recorded by the Tribunal. In the light of that, it cannot be said that this was a colorable device as admittedly the persons who sold the shares were the owners of the shares. 3. In so far as question-(B) is concerned, the question arises from finding of fact. The question as framed therefore, would not arise and consequently, appeal dismissed. (R.S.Mohite,J) (F.I.Rebello,J)