LOKNATH SARAF SECURITIES PVT. LTD.,KOLKATA vs ACIT, CIRCLE-6, KOLKATA, KOLKATA

Income Tax Appellate Tribunal, “A” BENCH : KOLKATA

Before: Hon’ble Shri J. Sudhakar Reddy, AM & Shri S.S. Godara, JM]

ORDER Shri S.S. Godara, JM:

This Assessee’s appeal for assessment year 2007-08 arises against the CIT(A), 17, Kolkata’s order dated 23-03-2017 passed in case no. 171/CIT(A)-17/Kol/14-15 involving proceedings u/s 143(3)/153D/153A of the Income-tax Act, 1961 ( in short ‘Act’).

Heard both the parties. Case file comprising of assessee’s computation of final accounts, I.T Return acknowledgement, copy of Tax Audit Report (TAR), copy of tribunal’s orders in assessee’s case itself for the assessment years 2003-04, ’05-06 and ’06-07, statement showing details of long term capital gains and short term capital loss, assessment order copy for the assessment year 2006-07 alongwith income computation and final accounts, tribunal’s order in DCIT V/s. M/s. Ramia Equity Pvt. Ltd, taxpayer’s written submissions filed before the CIT(A), Assessing Officer’s remand report, rejoinder thereto respectively; stands perused.

The asessee’s first and foremost substantive ground is that the Assessing Officer as well as CIT(A) have erred in law and on facts in treating its profits on sale of 1,00,000 shares held in M/s. Reliance Industry Limited to the tune of Rs.6,33,92,796/- as business income than long term capital gains. Its further case is that the Assessing Office as well as the CIT(A) have wrongly treated its short term capital loss on sale of shares held In M/s. RCVL amounting to Rs.81,33,396 as business loss in assessment as upheld in the lower appellate proceedings.

We go to basic relevant facts qua the instant first issue. The assessee company is a share broker. It is a member of Bombay Stock Exchange (BSE) and National Stock Exchange (NSE) in the relevant previous year. It claimed to have derived the above stated profits and loss in the nature of long term capital gains and short term capital loss on sale of above two scrips. The Assessing Officer finalized his assessment on 10-02- 09. He appears to have placed reliance on assessment findings in preceding assessment year 2006-07 to treat both the above long term capital gain and short term capital loss a business income and loss arising from share trading of stock-in-trade . Our attention is invited to the said assessment findings in assessment year 2006-07 to this effect.

4. The assesse preferred appeal. The CIT(A) has rejected its corresponding grounds as follows:- DECISION: The issue is taxing of I lac shares of Reliance Industries as business income, The assessee had shown the profit arising on account of sale of 1 lac shares of Reliance Industries as Long Term Capital Gain of Rs.633,92,796/-. The facts are that the said reliance shares were earlier held as stock-in-trade which were converted into investment portfolio. The said shares were then sold during the previous year and profit of Rs. 63392796/- was claimed as Long Term Capital Gain(LTCG).

The A/R of the asse see has stated that the issue is covered by the order of the Hon 'ble ITA r in A SI. Year 2006-07. However, on perusal of the aid order it is seen that on page no. 7, the Hon'ble ITAT has observed as follows:

“It is true that the shares held in investment category' were sold in part or in full by the assessee and immediately the shares of the same companies were purchased in the trading portfolio. This action of the assessee could neither be faulted with nor could any malign intention he attributed towards the same. The assessee could repurchase the shares of the same company due la various reasons. The assessee has every right to exit at the profitably moment from a particular scrip either in part or in full and due to sentimental reasons and the same could again be repurchased by an assessee.

From the perusal of the above, it is observed that the facts were difference in A.Yr. 2006-07. It has been pointed out by the Hon’be Tribunal that the assesse was maintaining dual portfolio i.e both investment account and trading account. The shares held in trading account were sold and repurchased later on the investment account. However, the facts are different in the impugned assessment year. The 1 lac Reliance shares were held as stock-in-trade and the same share were sold during the previous year as investment. There was no sale and repurchase of the shares. The issue is whether the same shares held as stock-in-trade could be converted into investment or not. In this regard the Act has clearly defined capital asset as follows: “Capital asset means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include- i) Any stock-in-trade.

Therefore it is seen that the "et expressly prohibits stock-in-trade to h considered as a capital asset. Capital gains can only arise on sale of a capital asset. It is submitted that a Board resolution was passed for this conversion. However, I am of the opinion that as per the provisions of the Act the conversion is not allowed from stock-in-trade to capital assets.. The assessee can maintain dual portfolio and it would be a different thing if the share held on trading account are sold first, thereby giving rise to business income and repurchased once again on the investment account. The Honble ITAT ha' held the same for A. Yr. 1006·07. However. in this year it is not the case that the shares held Oil trading. account v 'ere sold and repurchased on the investment account. The same shares 3 which were held on trading account are claimed to have been converted into investment. This conversion is not allowed specifically by the Act. In this case as the same shares held on trading account were sold so they would give rise to business income only. Therefore, the action of the AO in assessing the proceeds of the sale of shares held as stock-in-trade as business income is correct. Accordingly. the claim of the assessee for Long reran capital Gains and Short Term Capital Loss of Rs. 6,33.92,796i- and RS.81.396/-respectively on sale of shares of RIL and RCVL is hereby disallowed. “

This assessee is aggrieved.

We have given our thoughtful consideration to the rival contentions. Suffice to say, it has come on record that both the lower authorities have gone by assessment findings in the preceding assessment year 2006-07 to assesse assessee’s share profits and loss claimed as long term capital gain and short term capital loss respectively: as business income and business loss. The Revenue’s case is that assessee’s scrips form part of its stock-in-trade giving rise to business income. We find no merit in the Revenue’s stand under challenge. Mr. Agarwal, learned authorized representative before us took us through assessee’s balance sheet forming part of the case record. Its Schedule “ E” reveals investments comprising of assessee’s 1,00,000 shares held in M/s. Reliance Industries Limited during the relevant previous year in balance sheet indicating long term capital gain of Rs.633 at page 8 of the P/B. Learned counsel’s case is that the assessee has been maintaining dual portfolio of investments and stock-in- trade. Its income or loss derived by the former portfolio of investments has to be assessed as capital gain. This tribunal’s order in assessee’s case itself in assessment year 2006-07 in decided on 3-8-16 has already concluded that assessee’s board’s resolution had transferred its shares held in above scrips to investment portfolio in April, 2005. The assesse appears to have filed all these details as well as judicial precedents before the CIT(A) in lower appellate proceedings. A remand report was called. The Assessing Officer’s remand report dt. 28-02-2017 forming part of the case file at pages 120-122 reveal that the assesee had indeed claimed therein alongith necessary supportive documents that the assessee had passed its resolution on April, 2005 (supra) regarding conversion of stock-in-trade to investments. The said remand report nowhere controverted the said clinching fact. He simply observed that although the assesse had succeeded in A/y 2006-07 on the very issue the Revenue’s Tax Appeal in hon’ble jurisdictional high court was pending. There is no distinction on facts pointed out in these two assessment years in the said remand report. We therefore adopt judicial consistency as in preceding assessment year to conclude that assessee’s profits/loss derived from sale of shares held in investments portfolio have been wrongly assessed as business income/loss. We emphasize that the CBDT’s Circular dt. 29-2-2016 also holds that instant perennial issue of income derived from transfer of shares giving rise to business income or capital gains has to be decided by adopting consistency in case listed shares and securities held for more than 12 months. We accordingly conclude that the assessee’s profits of Rs. 63392796/- and loss of Rs. 81396/- on sale of shares deserve to be treated as long term capital gain and short term capital loss respectively. The; Assessing Officer is directed to finalize consequential computation. This first and foremost substantive ground is accepted in above terms.

The assessee’s second substantive ground seeks to reverse both the lower authorties’action computing its gross speculation loss as per Explanation to Sec. 73 amounting to Rs. 54,532232/-. Its further case is that the CIT(A) ought to have held that the said statutory provision does not apply to jobbing difference of Rs.2106635/-, market to market premium of Rs.90339745/- premium of Rs.1264040. Mr. Agarwal fails to dispute the crucial fact that its grievance in said preceding assessment year 2006-07 already stands declined. The CIT(A) also takes note of hon’ble jurisdictional high court’s decision whilst rejecting assessee’s corresponding substantive ground raised

in lower appellate proceedings:- “DECISION : The issue is whether loss suffered on account of trading in shares would be hit by the provisions of the explanation to sec.

73. The A/R of the assesse has relied on the amendment brought in by Finance Act 2014 excluding assessessees whose principle business iis trading in shares stating that it is retrospective in operation. The amendment was brought with effect from 01.04.2015. The impugned assessment year is A.Yr 2007-08. The A/R of the assesse has claimed relief under the exclusion by stating that amount would have retrospective effect. However, the Hon’ble Jurisdictional High Court in the case of M/S Snowtex Investment ltd GA NO. 1695 OF 2016, ITAT NO. 199 OF 2016 Dated: 22 November 2016 has held as under:-

“In the case before us, we are concerned with the assessment year 2008-09 and the amendment carving out an exception in the explanation to Section 73 for the companies, which have dealings in shares as their principal business, was made effective only 1st April, 2015, that is to say, almost 8 years after the assessment year undr consideration. We, as such, are not inclined to take notice of the earlier submission. Further, it appears from the Memorandum explaining the provisions in the Finance Bill, 2005 ( by which, inter alia, clause(d) to the proviso in subsection (5) of section 43 was proposed to be inserted that the Legislature deliberately refrained from enacting a corresponding amendment to the explanation in section 73. The said memorandum with regard to the proposed insertion says as follows: “The proposed amendment, therefore, seeks to provide than an eligible transaction carried out in respect of trading in derivatives in a recognized stock exchange shall not be deemed to be a speculative transaction The proposed amendment also seeks to notify relevant rules etc. regarding conditions to be fulfilled by recognised exchanges in this regard. Further it is also proposed to amend subsection (4) of section 73 so us 10 reduce the period fit carry forward of speculation losses from eight assessment years to jour assessment years. " The submission that the amendment introduced on lst April, 2015 is curative has not impressed us for the simple reason that the amendment to Section 43(5)was made by the legislature with effect from 1st April,2006. For long 9 years they allowed that situation to continue not because of any accidental error or omission on their part. That was a well considered step. We are, as such unable to hold that the amendment made with effect from lst April. 2015 shall have retrospective effect on the plea that u is curative in nature. That can only 6 be done by legislature and not by as Mr. Khaitan relied upon a judgement in the case of Commissioner of Income Tax reported in [2009] 319 ITR 306 (SC). wherein Their Lordships held that: "when a proviso in a section is inserted to remedy unintended consequences and to make the section workable, the proviso which supplies an obvious omission therein is required to be read retrospectively in operation. particularly to give effect to the section as a whole. We are unable to see how does this judgement have any application? Both dealings Ifl shares and dealings in derivatives were at one point of lime within the umbrella 01 speculative transaction. in the year 2006, dealings in derivatives ceased to a speculative transaction. But dealings in shares by a company, whose principal business was dealing in shares, were deliberately retained within the ambit of speculative transaction and has ultimately been lifted only in the year 2015. It cannot be said that this was a step to remedy any unintended consequences. The fact that in 2006 dealings in derivatives were treated as deemed business, but the dealings in shares were not similarly treated is a pointer to show that the legislature' intended to treat them differently. There is, a such no question of any unintended consequence. We are, as such, unable to hold that the amendment is curative in nature or for that reason has a retrospective effect.

Respectfully following the above decision I am of the opinion that the case of the assessee would not fall in the exclusions a' provided in the explanation to sec. 73 for assessment year 2007-08. Moreover. the Hon’ble High Court has held that the amendment is not retrospective therefore the claim of the assessee cannot be entertained for assessment year 2007-08. The appeal of the assessee on this i sue is therefore dismissed.”

We adopt hon’ble jurisdictional high court’ s detailed reasoning and learned co- ordinate bench’s decision mutatis mutandis to affirm the CIT(A)’s action under challenge. The assessee’s second substantive ground is decided in Revenue’s favour.

8. The assessee’s third substantive grievance is that CIT(A) ought to have held that Assessing Officer re-working of gross profit at Rs.3978188/- was not correct and further allowed loss in share trading Rs.39643809/-; respectively . Mr. Agarwal is fair enough in not pressing for this substantive ground in the instant appeal during the course of hearing. We therefore decline this substantive ground as not pressed.

This Assessee’s appeal is partly allowed in above terms. Order pronounced in the Court on 17 -05-2019 Sd/- Sd/- [ J. Sudhkar Reddy ] [ S.S.Godara ] Accountant Member Judicial Member Dated : 17 -05-2019 **PRADIP, Sr. PS Copy of the order forwarded to:

1. 1. Appellant/Assessee: M/s. Loknath Saraf Securities Pvt. Ltd 6 Lyons Range, Kolkata- 700 001.

2. Respondent/Department: The ACIT, Circle-6, Aaykar Bhawan, P-7 Chowringhee Sq., Kolkata-700 069. 3..C.I.T(A).- 4. C.I.T.- Kolkata.

5. CIT(DR), Kolkata Benches, Kolkata.

LOKNATH SARAF SECURITIES PVT. LTD.,KOLKATA vs. ACIT, CIRCLE-6, KOLKATA, KOLKATA