JUDGMENT
D.K. Kapur, J.
1. There is an application for condoning the delay in refiling this petition. We allow the same as it has been allowed in several other previously decided cases and proceed to decide the application on merits.
2. We are here concerned with an application under s. 256(2) of the IT Act, 1961 praying for a direction to the Tribunal to state a case for the asst. yr. 1976-77. The question sought to be raised is one concerning a profit from the sale of share which amounted to Rs. 7,788. According to the department, this is a revenue receipt, whereas the assessed contended it was a capital gain.
3. The question whether a particular gain from the sale of shares is a revenue receipt or a capital gain depends on whether the person selling the shares is a dealer in shares or an investor in shares. If he is a dealer i.e., deals in the shares that receipt can be treated as a revenue receipt.
4. On the facts of this case it was held that there was no material to show that the assessed had acquired the shares with a view to earn profits. This was the finding. There is a considerable discussion in the Tribunal’s substantive order as well as in the order of the AAC as to whether this particular assessed was a dealer or an investor. The facts and circumstances of many reported cases have been compared. The question we have to ask is whether this discussion makes the question one of law or one of fact ?
5. The essential question to determine whether a person is a dealer or an investor is the intention of the person which can be evident from various past transactions. In the case of a dealer, he is interested in making profit based on the price difference between the purchase and sale price. In the case of an investor, he is principally interested in holding the shares from the point of view of dividend. This fact is slightly complicated in a case like the present where the holder also happens to have managerial control or to be part of group that has managerial control. In such cases also the person is normally an investor because he is interested in liquidating his shares order to change the investments and a mere sale by an investor to change the change the pattern of investment does not mean that he becomes dealer. In the present case the conclusion from the facts is that the assessed is not a dealer and is not a trader the assessed is not a dealer and is not a trader in shares. This appears to be a finding of fact from which no legal question arises. So we decline this application. No costs.