Dmt 1 ita3357-10 IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 3357 OF 2010 The Commissioner of Income-Tax-4 Mumbai. ..Appellant. Vs. M/s. Beethoven Traders Pvt. Ltd. ..Respondent. Mr. Vimal Gupta for the Appellant. Mr. P.J. Pardiwala, Sr. Counsel with Mandar Vaidya i/by Roy’s Law Firm for the Respondent. CORAM : J.P. DEVADHAR AND A.A. SAYED, JJ. DATE : 6TH JULY, 2011. P.C. The substantial question of law raised in this appeal reads thus :- (A) Whether on the facts and in the circumstances of the case and in law the Hon’ble Tribunal was justified in Dmt 2 ita3357-10 allowing to the Assessee Company the exemption u/s 10(38) of the Income Tax Act on the profit on sale of shares of M/s. Herbertson Ltd. by holding that the said shares have been held by the Assessee Company as “investments”, even though the Assessee Company had itself shown the said shares in its Books of Account from A/y 1994-1995 to A/y 2004-2005 as stock-in-trade? 2. The finding of fact recorded by the Income Tax Appellate Tribunal in this case is that although the shares of M/s. Herbertson Ltd., held by the assessee were shown in the books of accounts as stock-in-trade, in the earlier assessment years the revenue contended that the said shares were in fact held as investment and the said contention of the Revenue was accepted by the Income Tax Appellate Tribunal in the earlier years. Following the order passed in the earlier years, the ITAT has held in the present case that the shares were held as investment. In this view of the matter, no fault can be found with the decision of the Tribunal. 3. The appeal is dismissed. No order as to costs. ( A.A. SAYED, J. ) (J.P. DEVADHAR, J.) Dmt 3 ita3357-10