R.M.SAHAI, J. - (1.) In this reference the following two questions of law have been referred for the opinion of this court: '1. Whether, on the facts and in the circumstances of the case, depreciation is allowable on the 1/6th share in S. B. Sugar Mills, Bijnor, which the assessee had acquired from Seth Shiv Prasad ?
(2.) WHETHER , on the facts and in the circumstances of the case, the Tribunal was justified in holding that the loss of Rs. 3,90,750 arising on sales of shares of M/s. Jaswant Sugar Mills Ltd. was loss of capital nature ?' 2. So far as question No. 1 is concerned, it is concluded by the decision of this court in Seth Banarsi Das Gupta v. Commissioner of Income -tax : [1971]81ITR170(All) , a case of this very assessee, but for a different assessment year. Counsel for the assessee has not been able to persuade us that the aforesaid decision needs reconsideration or that the principle laid down in this decision is not applicable to the present case. Regarding question No. 2, the undisputed facts are these : The assessee is a Hindu undivided family. It sold certain shares in companies to its individual members including the karta and debited its profit and loss account with a sum of Rs. 3,90,750 under the head 'loss on sale of shares'.In computing the income of the family the income -tax authorities disallowed this loss as being a capital loss.
(3.) THE Tribunal found that the assessee was not a dealer in shares and that the said shares of Jaswant Sugar Mills Ltd. were acquired as an investment by the assessee -family. The assessre did not adduce any evidence to show that it sold the shares as stock -in -trade.;