1 IN HIGH COURT OF JUDICATURE AT MADRAS DATE : 03.12.2014 CORAM HONOURABLE MR. JUSTICE R.SUDHAKAR AND HONOURABLE MR. JUSTICE R.KARUPPIAH T.C. (A) NO. 638 OF 2014 Commissioner of Income Tax Chennai. Appellant - Vs - M/s.Stargate Investments Pvt. Ltd. 9, Cathedral Road Chennai 600086. Respondent Appeal filed against order dated 15.09.2011 passed by Income Tax Appellate Tribunal, Madras 'C' Bench in ITA No.1004/Mds/2011. For Appellant : Mr. T.Ravikumar JUDGMENT (DELIVERED BY R.SUDHAKAR, J.) Aggrieved against order of Income Tax Appellate Tribunal in dismissing appeal filed by it, Revenue is before this Court challenging said order by filing present appeal, by raising following questions of law :- 1) Whether on facts and in circumstances of case, Tribunal was right in holding that sale of shares does not fall under head income from business but under head capital gains , thereby, entitling for relief u/s 10(38) of Income Tax Act, 1961? 2) Whether on facts and in circumstances of case, 2 Tribunal was right in not considering fact that transaction of sale and purchase of shares is in line with assessee's business and, hence, amounts to adventure in nature of trade? 2. respondent assessee is engaged in business of investment in shares and securities. assessee filed return of income for assessment year 2008-2009 on 29.9.2008. assessee company sold shares of India Cements Ltd., and claimed exemption under Section 10(38) of Income Tax Act as Long Term Capital Gains for assessment years 2006-2007 and 2008-2009. Assessing Officer passed order on 31.12.10 and held that profit on sale of shares to be taxed as business income and not as long term capital gains as sale constitutes adventure in nature of trade. 3. Aggrieved against said assessment, assessee preferred appeal before CIT (Appeals). CIT (Appeals), on consideration of matter, by following earlier order passed in case of very same assessee in ITA No.1400/Mds/2009 dated, allowed assessee's claim holding that assessee is entitled to claim exemption under Section 10(38) of Act. CIT (Appeals) was of view that shares held by assessee were in nature of capital asset and not stock in trade. 4. Aggrieved against said order of CIT (Appeals), Revenue filed appeal before Appellate Tribunal. Tribunal, took note of its earlier order passed in case of very same assessee in ITA No.1400/Mds/2009 dated 13.8.10, for assessment year 2006-2007, wherein identical issue raised was answered against Department, wherein finding was given that shares were held by assessee was long term investment and there was no basis to treat it as stock in trade of assessee company. Tribunal held that shares were held as long term investment and, therefore, same is entitled to long term 3 capital gains and, thereby, upheld order of CIT (Appeals). Aggrieved against said order, Revenue is before this Court by filing present appeal. 5. Heard Mr.T.Ravikumar, learned standing counsel appearing for appellant. 6. Even at outset, this Court is of considered opinion that there is no reason to differ from finding of fact recorded by CIT (Appeals) and Tribunal in present case, as same is only sequel to earlier order in ITA No.1400/Mds/2009 in respect of assessee's own case for assessment year 2006-2007, wherein similar relief was granted in favour of assessee. 7. Though plea has been taken by appellant in para-7 of appeal memorandum that there was some material in Director's report to show that there was business transaction, same cannot be countenanced at this stage as that plea should have been raised at appellate stage or before Tribunal and no new fact can be canvassed at this belated point before this Court. 8. This Court is of considered view that no questions of law, much less substantial questions of law arise for consideration in this appeal. Finding no merits warranting interference with order of Tribunal, appeal is dismissed. (R.S.J.) (R.K.J.) 03.12.2014 Index : Yes/No Internet : Yes/No GLN 4 R.SUDHAKAR, J. AND R.KARUPPIAH, J. GLN To Commissioner of Income Tax Chennai. T.C.A. NO. 638 OF 2014 03.12.2014 Commissioner of Income-tax, Chennai v. M/s. Stargate Investments Pvt. Ltd