Instant Holdings Ltd. v. The Deputy Commissioner Of Income Tax

1. Heard.

2. This Appeal relates to Assessment Year 2005-06.

3. Appeal admitted on the following substantial questions of law:-

“(1) Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in holding that the Assessing Officer had jurisdiction to reopen the assessment on the basis of the recorded reason that the loss suffered by the Appellant on purchase and sale of shares was not a business loss despite when (a) there was no dispute that the Appellant was a Non-Banking Financial Corporation (“NBFC”) and that its business activity was to buy and sell shares and (b) the material facts were disclosed by the Appellant in the original return of income and the same were duly considered/deemed to be considered by the Assessing Officer at the stage of passing the original assessment order under Section 143(3) of the Act?

(2) Whether on the facts and in the circumstances of the case and in law the Tribunal was right in holding that in the case of a NBFC engaged in the business of purchase and sale of shares, the profit or loss arising there from is assessable to tax not under the head “Profits & gains of business or profession” but under the head “Capital gains”?

(3) Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in holding that the Appellant was not eligible for the benefit of amortization of expenditure as conferred by Section 35D of the Act?

(4) Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in upholding an ad-hoc disallowance of expenditure even though the assessee has incurred the expenditure and made payment thereof and the recipient has been duly assessed in respect of the said sum?”

4. Registry is directed to communicate a copy of this order to the Tribunal, this would enable the Tribunal to keep the papers and proceedings relating to the present appeal available, to be produced when sought for by the Court.