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Income Tax Appellate Tribunal, “B’’ BENCH, AHMEDABAD
Before: SHRI MAHAVIR PRASAD & SHRI WASEEM AHMED
आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Revenue against the order of the Commissioner of Income Tax (Appeals)- 7, Ahmedabad [Ld.CIT(A) in short] vide appeal no.CIT(A)-7/110/15-16 dated 29/09/2016 arising in the matter of assessment order passed under s.143(3) of the Income Tax Act, 1961 (here-in-after referred to as "the Act") dated 10/08/2015 relevant to the Assessment Year (AY) 2013-2014.
The Revenue has raised the following grounds of appeal.
That under the facts and circumstances of the case, the Ld.CIT(A) has erred in law and on facts by deleting addition of short term capital gain of Rs. 24, 26, 5347-and long term capital gain of Rs.82,32,625/- as business income, without taking into in not considering the nature, magnitude and frequency of the transactions made by the assessee. The buying and selling of Share was for the purpose and motive of earning profit and hence should be taxed as business income. Besides income from share transactions constitute 84.42% of the total income of the assessee. 2. That under the facts and circumstances of the case, the Ld.CIT(A) has erred in law and on facts by deleting the disallowance of Rs.2,41,216/- U/S.14A of IT Act, by not appreciating that assessee is engaged in the business of transacting in shares and therefore the dividend income of Rs. 2, 54, 9847- and LTCG of Rs. 82,32, 61 57- is his business income and does not qualify as exempt income under rule 8D of Section 14A.
That the department craves leave to add or alter any further grounds of appeal before or during the course of hearing.
The first issue raised by the Revenue is that Ld.CIT (A) erred in treating the business income from the sale and purchase of shares as income under the head ‘’Capital Gain’’.
The facts of the case are that assessee is an individual and employed with HDFC Bank for the last several years. The assessee in the year under consideration filed his return of income declaring income under head Salary, Capital gain (short-term & long-term Capital gain) and income from the other sources.
4.1 The assessee during the year in respect of STCG has dealt in 176 scripts in the purchase and sales of 37,731 nos. of shares. The assessee has shown purchases amounting to Rs. 2,41,13,048/- and sales of Rs. 2,16,80,514/-. Thus the assessee declared short-term capital gain (for short STCG) of Rs. 24,26,534/- which was offered to tax under section 11A of the Act.
4.2 Similarly, the assessee in respect of LTCG has dealt in 46 scripts representing the sale and purchase of 31,867 nos. of shares. The assessee has shown purchases of Rs. 2,09,98,537/- and sales of Rs. 1,27,65,922/-. The assessee has declared long-term capital gain (for short LTCG) of Rs. 82,32,615/- which was claimed as exempt u/s 10(38) of the Act.
The AO during the assessment proceedings observed certain facts as detailed under:
The transaction of sale and purchase of shares/securities is in the nature of adventure in trade. Therefore, the same should be offered as a business income. The AO in support of his view relied on the judgment of Hon’ble Gujarat High Court in the case of Reva Shankar Vs. CIT reported in 283 ITR 338.
The salary income represents only 13.71% of the total income, and similarly, the income from other sources is representing 1.67% of the total income whereas income under the head ‘’Capital Gain’’ is representing 84.42 percent of the total income. Thus it is evident that the activities of purchases and sales of shares/securities were carried out with the intention to make profits. Therefore, the activity of purchase and sale of shares should be treated under the head ‘’Business& Profession’’ and similarly, the income from it.
The assessee has used borrowed fund against the investment, and accordingly, he incurred interest expenses. So it is clear that assessee has carried out the activities of purchase and sale of shares as the business.
In view of the above income declared by the assessee under the head ‘’Capital Gain’’ was treated as business income by the AO under the assessment framed u/s 143(3) of the Act.
6.0 The aggrieved assessee preferred an appeal to ld. CIT-A. The assessee before the ld. CIT-A submitted that the CBDT has recently issued a Circular bearing no.6/2016 dated 29/02/2016 wherein it was observed that the income shown by the assessee should be accepted under head ‘’Capital Gain’’ if he is holding shares more than 12 months and classified stock of shares as investment in its books of accounts.
6.1 The assessee has shown interest income amounting to Rs 5,56,00/- against which the interest expense was claimed. As such the interest income was offered under the head ‘’income from other sources’’ and accordingly the interest expense was claimed under section 57 of the Act.
The Ld.CIT (A) after considering the submission of the assessee held that he has shown income under the head ‘’capital gain’’ from sale and purchase of shares in the earlier and subsequent years which was accepted by the Revenue. Therefore, the Ld.CIT (A) after considering the CBDT Circular as discussed above decided the issue in favor of the assessee.
Being aggrieved by the order of the Ld.CIT (A), the Revenue is in appeal before us. The ld. DR before us submitted that the assessee had made purchases and sales of shares several times during the year which evidences that he never had any intention to earn income on such investment by way of dividend. Therefore the activity of the assessee should be treated as an adventure in the nature of trade.
The Ld. DR supported the order of the AO.
On the other hand Ld. AR, reiterated the submission made before the authorities below.
We have heard the rival contentions and perused the materials available on record. The assessee in the instant case has declared short-term capital gain income and long-term capital gain income from the sale purchase of the listed shares. But the AO treated the capital gain income declared by the assessee as business income on the ground that the assessee is carrying out a business activity of the purchase and sale of shares. However the Ld.CIT (A) reversed the order of the AO by holding that the impugned income declared by the assessee represents the income under the head capital gain.
11.1 Now the controversy before us arises whether the income earned on the sale & purchase of shares by the assessee represents business income or capital gain. The assessee has declared short-term capital gain and long-term capital gain amounting to Rs. 24,26,534/- and Rs. 82,32,615/- respectively. For adjudication, we shall deal separately for short-term and long-term capital gain.
11.2 In this regard we note that the income from the sale and purchase of shares had been the subject matter of dispute since quite a long time. However, recently the CBDT has issued a circular bearing No. 6/2016 dated 29th February 2016 to put an end to this ongoing dispute.
11.3 Long-term capital gain
As per the circular, in case the assessee treats the income from the sale of listed securities held for more than 12 months under the head capital gain then the Revenue shall not object the same. There was also no information provided by the Ld. DR, suggesting that the assessee has taken a different stand in any subsequent year. Thus the content of the circular issued by the CBT is squarely applicable to the case on hand. There is no dispute that the assessee has declared long-term capital gain income from the listed securities amounting to Rs. 82,32,625/- which was claimed as exempt under section 10(38) of the Act.
11.4 Short-term capital gain
As per circular No. 6 /2016 dated 29-2-2016 and 4 of 2007 dated 15th of June 2007, the treatment shown by the assessee in the books of accounts will decide whether the income earned from the sale and purchase of shares represent the short-term capital gain or business income. In this regard, we note that the assessee in his balance sheet has shown the stock of the securities as an investment. The copy of the balance sheet is placed on record. In view of the above and considering the circulars issued by the CBDT, we hold that the income from the sale and purchase of shares is taxable under the head capital gain.
11.5 We also note that the assessee has shown income from the similar activities under the head capital gain in the immediately preceding assessment year which was accepted by the Revenue in the assessment framed under section 143(3) of the Act. Thus in our considered view, the principle of consistency shall also be applied in the case on hand as held by the Hon’ble Supreme Court in the case of Radha soami satsangVs CIT reported in 193 ITR 321.
11.6 We also note that the ratio laid down by the Hon’ble Gujarat High Court in the case of Revashanker A Kothari reported in 283 ITR 338 cannot be applied in the case on hand. It is because the judgment was delivered by the Hon’ble court vide order dated 16-02-2006, and at that relevant time there was no circular issued by the CBDT. Accordingly, no reference was made to the circulars issued by the CBDT as discussed above.
11.7 We also find that Hon’ble Gujarat High Court in the case of the PCIT Vs. Ramanwas Ramjivan kasat reported in 82 taxmann.com 458 has decided the issue of long-term capital gain from the sale purchase of listed securities held for a period exceeding 12 months in favor of assessee after considering the CBDT Circular No. 6/ 2016 issued 29th of February 2016. In this case, also the AO treated the capital gain income from the sale purchase of shares as business income after observing the pattern of holding the shares, the frequency of transactions and other relevant consideration.
11.8 We also find support and guidance from the judgment of Hon’ble Gujarat High Court in the case of PCIT Vs. Bahnupasad D Trivedi(HUF) reported in 87 taxman.com 137 wherein the issue of short-term capital gain Vs. business income was decided in favor of the assessee after referring to the CBDT circular 4/2007 dated 15 June 2007. The shares shown as an investment in the books of accounts will generate the income under the head
capital gain on the sale of the investment. We also note that the assessee has shown stock in shares/securities as an investment in its financial statement of the current year as well as of the earlier years which was duly accepted by the Revenue.
11.9 In view of the above we hold that the frequency of the transactions, the volume of the transactions in the sale, purchase of securities in the instant case will not alter the head of income, i.e. capital gain as declared by the assessee. Accordingly, we do not find any reason to disturb the finding of the Ld.CIT (A). Hence the ground of appeal of the Revenue is dismissed.
The second issue relates to the deletion of the disallowance by the learned CIT (A) for Rs. 2,41,216.00 only under section 14A of the Act.
The assessee in the year under consideration has shown exempt income by way of dividend and a long-term capital gain of Rs. 2,54,984.00 and 82,32,615.00 respectively under section 10(34) and 10(38) of the Act. But the assessee has not made disallowance of any expenses under the provisions of section 14A of the Act. Therefore the AO treated the interest expenses of ₹ 2,41,216.00 as incurred against the exempt income. Accordingly, the AO disallowed the same and added to the total income of the assessee.
Aggrieved assessee preferred an appeal to learned CIT(A) who deleted the addition made by the AO.
Being aggrieved by the order of learners ITA revenue is in appeal before us. Both the parties before us relied on the order of authorities below as favorable to them.
We have heard the rival contentions and perused the materials available on record. In the instant case, the assessee has shown interest income amounting to Rs. 5,56,000/-only. The assessee against such interest income has claimed a deduction of interest expenses amounting to Rs. 2,24,216/- only. However, the AO was of the view that this interest expense has been incurred against the exempt income being the dividend and long-term capital gain. Therefore, the AO disallowed the same and added to the total income of the assessee. However the Ld. CIT(A) reversed the order of the AO by observing that the interest expenses was assumed against the exempt income by the AO without adducing any reason thereon.
16.1 On perusal of the statement of income filed by the assessee, we note that the interest expense was claimed as a deduction against the interest income earned by the assessee. However, the AO without any finding any fault in the claim of the assessee has assumed the interest expenses have been incurred in relation to the exempt income. Therefore, the AO was under the obligation to provide the basis of his assumption/considering the interest expenses against the exempt income. In the absence of any finding of the AO that the borrowed fund was used in the investment from which exempt income earned by the assessee, we hold that the AO has made the addition on his surmise and conjecture.
16.2 In addition to the above we also note that there was own sufficient fund available with the assessee amounting to Rs. 3,01,65,305/- against the investment of Rs. 1,96,69,896/- as evident from the balance sheet as on 31 March 2013. The copy of the balance sheet is available on record. There was no defect pointed out by the AO in the balance sheet filed by the assessee.
16.3 Thus we can presume that the own fund was utilized by the assessee in the investment as discussed above. In this regard, we find support and
guidance from the judgment of Hon’ble Gujarat High Court in the case of CIT Vs. UTI Bank Ltd. reported in 32 taxmann.com 370 wherein it was held that no disallowance of interest is warranted if own fund of the assessee exceeds from the investment. Therefore, we do not find any reason to disturb the finding of the Ld.CIT (A). Hence, the ground of appeal of the Revenue is dismissed.
In the result, the appeal of the Revenue is dismissed.
Order pronounced in the Court on 01/02/2019 at Ahmedabad.
-Sd- -Sd- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 01/02/2019 manish आदेश क� ��त�ल�प �े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण / DR, ITAT, 6. गाड� फाईल / Guard file. आदेशानुसार/BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad