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Income Tax Appellate Tribunal, “H”, BENCH
Before: SHRI M.BALAGANESH, AM & SHRI AMARJIT SINGH, JM & Shri Hardik Bharat Patel Shri Hardik Bharat Patel
आदेश / O R D E R
PER M. BALAGANESH (A.M): These cross appeals in 4605/Mum/2016 & 4557/Mum/2016 for A.Yrs. 2010-11 & 2011-12 respectively arises out of the order by the ld. Commissioner of Income Tax (Appeals)-28, Mumbai in appeal No.CIT(A)-28/IT-810/ACIT-17(1)/2014-15, CIT(A)-28/IT-858 /ACIT-17(1)/2014-15 dated 20/04/2016, 23/04/2016 respectively (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) (ii) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 28/03/2013 by the ld. Asst. Commissioner of Income Tax – 15(1), Mumbai (hereinafter referred to as ld. AO).
As the issues involved are identical in all these appeals, they are taken up together and disposed off by this common order for the sake of convenience.
(Revenue Appeal)
The first issue to be decided in this appeal is as to whether the ld. CIT(A) was justified in treating the gains derived from shares as short term capital gains as against treatment of the same as business income by the ld. AO, in the facts and circumstances of the case. The interconnected issue involved therein is as to whether the ld. CIT(A) was justified in directing the ld. AO to treat the gains of Rs.15,08,33,704/- derived from shares as long term capital gains as against the treatment of the same as business income by the ld. AO in the facts and circumstances of the case.
The brief facts of this issue are that the assessee is an individual deriving income from capital gains, dividend and interest. The assessee is also a Director in M/s. Finquest Securities Pvt. Ltd. from which the assessee has received commission of Rs.7,00,000/-. The assessee had declared the following items of income:-
Profit on F&O trading Rs. 15,61,143/- STCG to be taxed @ 15% Rs. 1,01,58,279/- LTCG claimed exempt Rs. 15,08,33,704/- Dividend income claimed exempt Rs. 98,71,761/- Rs. 89,735/- Interest income 3.1. The ld. AO observed that the company in which assessee is a Director i.e. M/s. Finquest Securities Pvt. Ltd was also dealing in shares and also acted as broker for the share transactions carried out by the assessee. The ld. AO observed that the volume and frequency of transactions in shares carried out by the assessee were huge and were carried out in a systematic manner by the assessee and hence, assessee cannot be termed as a mere investor in shares. He observed that no separate portfolio for long term investments and short term investments were maintained by the assessee. The ld. AO observed that for A.Y.2008- 09, the ld. AO had treated the short term capital gain and long term capital gains reported by the assessee as business income vide order u/s.143(3) dated 10/12/2010. He observed that the said order of the ld. AO passed by his predecessor for A.Y.2008-09 had been parallelly confirmed by the ld. CIT(A) wherein the ld. CIT(A) had confirmed the action of the ld. AO in respect of short term capital gains, but directed the ld. AO not to treat the long term capital gains as business income. The ld. AO further observed that for A.Y.2009-10, proceedings u/s.264 of the Act has been initiated by the ld. Administrative CIT-15, Mumbai as the ld. AO erred as per office not annexed to the assessment order for A.Y.2009-10 dated 30/11/2011 by noting as under:-
"In this case the assessee 's income both LTCG and STCG 'for the A. Y.2007- 08,2008-09 was assessed as Business income. The CIT(A) has held for A.Y.2007-08 that STCG of the assessee shall be assessed as business income and directed to assess LTCG as such. The department has filed an appeal to ITAT which is pending and the issue is not finally settled. For the current year though the facts of the case appears to be the same, the assessee has shown STCG income of. Rs.6,09,859/- and LTCG loss of Rs.l4,50,235/- Had the Capital gain of the assessee is assessed as business income as it was held in earlier year, there will be capital loss which has to be assessed as business loss this loss has to be set off the business income of the assessee and then the assessed income will be less than the returned income. Accordingly, the income of the assessee is being assessed as such subject to the finality of appellate proceedings”.
3.2. In view of the aforesaid observations, the ld. AO treated the short term capital gains of Rs.1,01,58,279/- and long term capital gains of Rs.15,08,33,704/- as business income of the assessee while completing the assessment. The ld. CIT(A) by placing reliance on the order passed by this Tribunal in assessee’s own income for A.Yrs.2007-08 and 2008-09 directed the ld. AO not to treat both short term capital gains and long term capital gains as business income.
Aggrieved, the revenue is in appeal before us.
We have heard rival submissions. We find that the ld. AO had treated the assessee as a trader in shares and not as an investor in shares by placing reliance on the orders passed by his predecessor for the A.Yrs. 2007-08 and 2008-09. We find that assessee has been consistently showing the purchase of shares under the head ‘investments’ from the inception and had been consistently reporting capital gains or capital loss as the case may be. We also find that the CBDT Circular No.6/2016 dated 29/02/2016 also states that where the assessee has consistently reported long term capital gains in the past and during the year under consideration, the same should not be disturbed by the revenue by treating it as business income. We hold that the said analogy would apply with equal force for short term capital gains also. We find that in respect of profits derived from futures and options, the assessee had declared the same under the head ‘business income’ which goes to prove the bonafide intention of the assessee of maintaining dual portfolios and offering to tax under the proper heads correctly.
5.1. We also find that this Tribunal for A.Yrs.2007-08 and 2008-09 in & 8013/Mum/2011 dated 01/05/2013 had held that both short term capital gains and long term capital gains should be assessed as such and not to be treated as business income. In other words, this Tribunal had given a categorical finding for A.Yrs.2007-08 & 2008-09 that assessee is merely an investor in shares and hence, the gains derived there from should be assessed only under the head ‘capital gains’. The relevant operative portion of the said order as reproduced in the order of the ld. CIT(A) is as under:- “Therefore, respectfully following the decision of the Tribunal and the Hon'ble High Court mentioned above, we hold that the learned CIT(A) was not justified in confirming the order of AO, who took the transaction as business transaction instead of treating the same as short term capital gain. Learned CIT(A) has confirmed the order of AO by observing that the transactions are frequent transactions, however, we are of the view that the holding period cannot be taken into consideration because under the Act itself, it has been provided that where the holding period of shares are more than one year then the long term capital gain will be applicable and where the holding period is less than one year, then the short term capital gain will be applicable, subject to the transaction are shown under the head investment portfolio. Therefore, whether the transaction are frequent or holding period is less, they are shown under the head investment portfolio, therefore, the transaction which have been shown under the head investment portfolio and, hence, the short term capital gain or long term capital gain as the case may be, will be applicable. In view of these facts and circumstances, we allow the grounds of the assessee for both of the years and direct the AO to assess the profit under the head short term capital gain instead of under the head business profit.”
5.2. There is no dispute that the facts are identical in this year when compared to that in A.Yrs.2007-08 and 2008-09. We find that the ld. CIT(A) had merely followed the order of this Tribunal for earlier years while granting relief to the assessee and we also find that the Hon’ble Jurisdictional High Court in assessee’s own case for A.Y.2008-09 after considering all the arguments of the revenue had upheld the order of this Tribunal for A.Y.2008-09 as referred supra and by dismissing the appeal of the revenue in dated 19/11/2018. Respectfully following the aforesaid orders, we do not find any infirmity in the order of the ld. CIT(A) in this regard. Accordingly, the grounds raised by the revenue for the A.Y.2010-11 is dismissed.
In the result, appeal for the revenue for the A.Y.2010-11 is dismissed. -A.Y.2011-12 (Revenue Appeal)
We find that the grounds raised by the revenue for A.Y.2011-12 are exactly similar to A.Y.2010-11 raised by them and hence, the decision rendered by this Tribunal for A.Y.2010-11 supra would hold good with equal force for A.Y.2011-12 also except with variance in figures. Accordingly, the grounds raised by the revenue for A.Y.2011-12 are dismissed.
In the result, appeal for the revenue for the A.Y.2010-11 is dismissed. -A.Y.2010-11 (Assessee Appeal)
The only issue to be decided in this appeal of the assessee is as to whether the ld. CIT(A) was justified in confirming the addition of Rs.15,36,000/- made by the ld. AO denying the exemption claimed by the assessee u/s.10(34) of the Act in respect of dividend on shares of Good Year India Ltd., in the facts and circumstances of the case.
We have heard rival submissions. We find that the assessee had received dividend of Rs.15,36,000/- from M/s. Good Year India Ltd., which is claimed as exempt in the return of income. However, from the bank statement of Indus Ind Bank, it was noticed that the said amount was credited to the assessee’s account by transfer entry on 26/06/2009. The assessee was asked to produce the copy of dividend warrant by the ld. AO. We find that the assessee has submitted that he had received a dividend of Rs.15,36,000/- through its broker M/s. Finquest Securities Pvt. Ltd in respect of 256000 equity shares for which dividend was paid @ Rs 6/- per share. It was submitted by the assessee that a dividend was first credited in the bank account of M/s. Finquest Securities Pvt. Ltd on 26/06/2009 because as on that date, the shares of Good Year India Ltd was lying with the broker. It was further stated that these shares were dematerialized on 13/08/2009 to the credit of the assessee. We find that the ld AO observed that since assessee was not holding any shares of Good Year India Ltd, it is not entitled for receipt of dividend and hence the amount credited in the account of the assessee by transfer entry in the sum of Rs.15,36,000/- is to be brought to tax as income from other sources and accordingly denied the exemption u/s.10(34) of the Act. We find that the assessee had produced confirmation from the broker stating that on the date of declaration of dividend, the shares were held only by the broker and not by the assessee but later the shares were transferred from the broker’s amount to the assessee’s account and the said shares were duly dematerialized only on 13/08/2009. We find that the assessee had furnished additional evidences before us in terms of Rule 29 of the Tribunal Rules furnishing a copy of DEMAT statements maintained by the assessee with M/s. Finquest Securities Pvt. Ltd (Broker) from 01/04/2008 onwards in respect of shares of Good Year India Ltd., and also a copy of DEMAT statement of M/s. Finquest Securities Pvt. Ltd. from 01/04/2008 onwards in respect of shares in Good Year India Ltd. It is the case of the assessee that the broker had transferred the shares to the assessee and accordingly, the dividend amount of Rs.15,36,000/- was transferred by the broker to the assessee. It is also the case of the assessee that the shares were held by the broker only on behalf of the assessee. We find that the ld. AR fairly pleaded that the let these additional evidences be admitted and be remanded to the file of the ld. AO for adjudication in order to address the true picture of the issue in dispute. He further argued that in any case, there cannot be any denial of exemption u/s.10(34) of the Act in the hands of the assessee as admittedly the dividend declaring company i.e. Good Year India Ltd had paid dividend distribution tax while declaring a dividend on which fact there is no dispute. Hence, the ld. AR argued that it is not relevant whether the assessee receives the dividend or the broker receives the dividend on behalf of assessee. We find that the additional evidences filed by the assessee deserved to be admitted as they are crucial for adjudication of the issue in dispute. We also find that these documents were not made available before the ld. AO and hence, in the interest of justice and fair play, we deem it fit and appropriate to remand this entire issue to the file of the ld. AO for denovo adjudication to be decided in accordance with law. All other arguments advanced by the ld. AR before us are left open, no opinion is given herein in that regard. Accordingly, the grounds raised by the assessee for A.Y.2010-11 are allowed for statistical purposes.
TO SUM UP:- Appeal By Result 4604/Mum/2016 2010-11 Revenue Dismissed 4605/Mum/2016 2011-12 Revenue Dismissed 4557/Mum/2016 2010-11 Assessee Allowed for Statistical Purposes Order pronounced in the open court on this 16/10/2019