COMMISSIONER OF INCOME TAX vs. HARI PRASAD GUPTA

^- IN THB HIGH COURT OF CHHATTISGARH AT BILASPUR TAX CASENO. ^) OF 2^Q OJVJSJOn Bgncfc .PPELLAN'^.\.l^-*\^ ^Commissioner of Iricome Tax, •••<%^A:f^a^J ' ^ waF4-3~(2)\RaiPur Rangc,' ««.- Raipur, Chhattisgarh. .0^ A^v PONDENT: Versus ^Hari Prasad Gupta, C/p M/s. Sunita Finlease Limited, Opposite Raj Kumar College, G.E. Road, Raipur, Chhattisgarh. INCOME TAX APPEAL UNDER SECTION 260-A OF THE INCOME TAX, 1961 Ate^-

[Aff HIGH COURT OF CHHATTISGARH AT BILASPUR CORAM: HON'BLE SHRI YATINDRA SINGH, C.J. HON'BLE SHRI PRITINKER DIWAKER, J. Tax Case No.21 of 2011 Appellant Commissioner of Income Tax VERSUS Respondent Hari Prasad Gupta Income Tax appeal u/s 260-A of Income Tax Act 1961 Appearance: Shri Anand Dadariya, counsel for the Appellant. JUDGEMENT (25thJuly,2013) 1. This is a tax appeal against the order of the Income Tax Appellate Tribunal, Bilaspur Bench, Bilaspur (the Tribunal) dated 04.06.2010 allowing the appeal of Shri Hari Prasad Gupta (the Assessee) in respect of Assessment Year (AY) 2006-07. THE FACTS 2. The Assessee filed his return for AY-2006-07 claiming sale proceeds of some shares as short term capital gains. 3. The Assessing Officer (the AO) by his order dated 23.03.2007 accepted the case of the Assessee and treated the sale proceeds to be short term capital gains. 4. The Commissioner of Income Tax (Appeals) Raipur (the CIT-A) passed an order under section 263 of the Income Tax Act, 1961 (the Act) directing to treat the proceeds from the sale of the shares not as short term capital gains, but as a business income. 5. Aggrieved by the aforesaid order, the Assessee fited an appeal before the Tribunal. It was allowed on 04.06.2010. Hence, the appeal by the Income Tax Department (the Department). THE DECISION 6. We have heard counsel for the Appellant.

^ 7. This appeal was admitted on 20.06.2011 on the followingsubstantial question of law: ' Whether on the facts and in the circumstances of the case and in law, the ITAT was justified in quashing the order under Section 263 of the Act and considering the share transactions of the assessee to be one time investment, when the transactions clearly showed the business characteristics of volume, frequency, continuity, regularity and also the intention to continue the activity in future?' 8. The Tribunal after considering all the aspects of the matter has recorded a finding that the AO had taken one possible view of the matter. In such a case, if two views are possible and one had been taken by the AO, then the power under section 263 of the Act could not be exercised. There is no illegality in the same. 9. In view of above, the question is answered against the Department. The tax case has no merit. It is dismissed. -C^-^L padma Sd/- Chief Justice Sd/- Pritinker Diwaker Judge