0309itl68.09.odt 1/2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR INCOME-TAX APPEAL NO. 68 OF 2009 (Commissioner of Income-Tax-I, Nagpur Vs. Vedant Prakash Agrawal, Nagpur) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr. Anand Parchure, Advocate for the appellant. CORAM: J. P. DEVADHAR & A. B. CHAUDHARI, JJ. DATED : 03RD SEPTEMBER, 2010. Whether the gains accrued to the assessee on sale of shares are liable to be taxed under the head ‘capital gains’ or taxed under the head ‘business income’ is the question raised in this appeal. According to the Revenue, the gains accrued to the assessee on sale of shares were liable to be taxed as business income because the assessee himself had admitted that he was carrying on business of dealing in shares and that the assessee had not prepared balance- sheet at the end of the year in respect of shares held by him. The Tribunal has negatived the contention of the Revenue by holding that the statement of the assessee has been misconstrued by the Revenue. The Tribunal noted that the assessee had stated that he had invested in shares which were held by him for more than one year and with a view to start the taxi business, he has sold the shares. As regards non preparation of the balance-sheet, looking to the totality of the facts, 0309itl68.09.odt 2/2 namely, non deployment of borrowed funds, frequency of the transaction and the fact that in the past the gains have been taxed as capital gains, the Tribunal came to the conclusion that the gains accrued to the assessee were liable to be taxed as capital gains. In our opinion, the finding of fact recorded by the Tribunal does not give rise to any substantial question of law. The Income-Tax appeal is accordingly dismissed. JUDGE JUDGE wwl