Judgment :- The Hon'ble Chief Justice: Heard the counsel for parties. The question referred to us is as follows:- "Whether on the facts and in the circumstances of the case, the Appellate Tribunal is right in law in holding that the profit on sale of shares to the extent of Rs.43,93,175/- is to be treated as capital gains instead of as business income, as adopted by the Assessing Officer?" 2. The finding of fact recorded in para 15 of the order of the Tribunal is that the shares in question were never treated by the assessee as stock-in-trade and they were held for earning dividend only. A company can hold some shares as stock-in-trade for the purpose of doing business of buying and sale of such shares, while at the same time it can also hold some other shares as its capital for the purpose of earning dividend income. Here the shares in question were held as the assessee's capital and not as stock-in-trade. Hence, there would be capital gain and not business income. Hence, we answer the question referred in the affirmative i.e., in favour of the assessee and against the Department.