Case: Commissioner of Income Tax, Bihar and Orissa Vs. Dalmia Jain and Company Limited

All these appeals by certificate are by the Commissioner of, Bihar & Orissa, against the same assessee, namely, Dalmia Jain & Co. Ltd.

Reasoning:
There is no dispute that the assessee did incur loss by the sale of those shares. It is established that the assessee was dealing in shares. It is also established that in the previous years, such losses were given deduction too while computing the total income of the assessee. The Tribunal as well as the High Court have concurrently come to the conclusion that the loss in question is trading loss.The question whether a particular loss is a trading loss or a capital loss is primarily a question of fact. It is not the case of the department that in arriving at its decision, the Tribunal has taken into consideration any irrelevant consideration or failed to take into consideration any relevant consideration.Hence, there is no room for interference by this court.