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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY, JM & SHRI MANOJ KUMAR AGGARWAL, AM
Per Manoj Kumar Aggarwal (Accountant Member) 1. The captioned appeal by revenue for Assessment Year [AY] 2008-09 assails the order of the Ld. Commissioner of Income-Tax (Appeals)-7 [CIT(A)], Mumbai, Appeal No.CIT(A)-7/IT.06,17&18/Rg.16(3)/2014-15 dated 13/02/2015. The assessment was framed by Ld. Addl. Commissioner of Income Tax 11(3), Mumbai u/s 143(3)(ii) on 31/12/2010. The effective grounds of appeal
read as follows:-
1. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition made by the AO amounting to Rs.23,28,423/- on account of Foreign Travel Expenses.
2. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in holding that the income from sale of shares amounting to Rs.1,21,01,161/- assessed by the A.O. as business income should be assessed as STCG. 2.1 Facts leading to the same are that the assessee being resident individual and lawyer by profession was assessed u/s 143(3)(ii) for impugned AY on 31/12/2010 at Rs.5,42,91,161/- after certain additions / adjustments/ disallowances as against returned income of Rs.4,82,20,681/- e-filed by the assessee on 30/09/2008. The two issues involved in the appeal are Foreign Travelling Expenses claimed by the assessee and secondly, the head under which Share Income earned by the assessee would be assessable.
Rohan P.Shah Assessment Year 2008-09 2.2 During assessment proceedings, it was noted that the assessee claimed total expenses of Rs.23,79,927/- towards foreign travelling expenses which comprised of travelling cost of Rs.16,74,633/- and Hotel Expenses of Rs.6,53,790/-. The assessee pointed that it already made suo- moto disallowance aggregating to Rs.6 Lacs which comprised of disallowance of Rs. 4 Lacs against travelling cost and Rs.2 Lacs against hotel expenses and produced ledger copy in support of these expenses. However, Ld. AO noted that the assessee could not furnish sufficient documentary evidences against the same and also could not specify the professional purpose of the visit and therefore, made full disallowance of balance amount of Rs.23,79,927/- as claimed by the assessee. 2.3 The second issue pertains to head under which share income would be assessable. The assessee reflected Short Term Capital Gain [STCG] of Rs.1,21,01,161/- on sale of certain shares. Upon perusal of share transactions, Ld. AO noted that magnitude of the transactions was very high in terms of volume, frequency & regularity. Further, the assessee earned miniscule dividend income of Rs.3,02,468/- against share investment. The Ld. AO analyzed that out of 116 transactions, 111 transactions had holding period of less than 180 days. Further, in 40.5% of the transaction, the holding period was less than month and in 96% of the transactions, the holding period was less than 180 days. Further the assessee carried out repetitive transactions and therefore, the transactions were undertaken with the intention of trading in shares and not to be kept Rohan P.Shah Assessment Year 2008-09 as investments. Resultantly, Ld. AO treated the gains as profit from trading of share which was assessable under head ‘Business Income’. Consequentially, the assessee was denied the set-off of Short Term Capital Loss incurred by him during the year from the same and also saddled with higher rate of tax on Share Income as against concessional rate of tax @10% as applicable to Short Term Capital Gain. 2.4 Aggrieved, the assessee contested both the actions of Ld. AO with success before Ld. CIT(A) vide impugned order dated 13/02/2015. The Ld. CIT(A) noted that the assessee, being lawyer by profession, was required to visit foreign countries to attend seminars / conferences for the purposes of sharing knowledge and understanding latest issues and developments in the field of law and economics and also for gaining more exposure in his field of practice and therefore, further disallowance was not justified since the assessee had already made suo-moto disallowance of Rs.6 Lacs against the same. 2.5 The Ld. CIT(A) considered assessee’s submissions regarding treatment of share income and noted that there were not repetitive transactions in same scrip on same day. It was also noted that Ld. AO did not apply the same criteria to Long Term Capital Gains reflected by the assessee. Finally, placing reliance on various judicial pronouncements, Ld. CIT(A) agreed with the stand of assessee. Aggrieved, the revenue is in further appeal before us.
Rohan P.Shah Assessment Year 2008-09 3. The Ld. Departmental Representative [DR] justified full disallowance of foreign travelling expenses on the premises that sufficient documentary evidences could not be furnished by the assessee against the same and Ld. CIT(A), in a cryptic manner, provided relief to the assessee. Our attention was drawn to the fact that the onus of demonstrating that impugned expenses were incurred for professional purposes was on assessee, which he has failed to discharge. Regarding treatment of Share Income, reliance was placed on the finding of Ld. AO.
Per Contra, Ld. AR drew our attention to the fact that the assessee is lawyer by profession and required to make frequent visit to foreign countries so as to attend various seminars / conferences etc. for the purpose of enhancing / sharing professional knowledge and therefore, the impugned expenses were incurred for the professional purposes. Our attention is drawn to the fact that foreign visit was a regular feature of assessee’s profession and these expenses are being incurred year on year basis by the assessee and the Assessing Officer, in several other years accepted the same barring certain adhoc disallowance against the same to factorize for the personal element. The Ld. AR also contended that very little time was provided by the Ld. AO to adduce sufficient details and documentary evidences to substantiate the same and the assessee was pre-empted to demonstrate the same. Regarding treatment of Share Income, the Ld. AR placed reliance on the findings of Ld. CIT(A) and various judicial pronouncements to contend that the assessee being a Rohan P.Shah Assessment Year 2008-09 professional lawyer, acted only as on investor and therefore, impugned income was rightly offered under the head capital gains.
We have carefully considered the rival contentions and perused relevant material on record. We find that relevant documents qua foreign travelling expenses have been placed on page nos.27 to Page Nos. 44 of the paper-book. Upon perusal of the same, we find that the assessee has incurred expenses of Rs.8.53 Lacs on Hotel Expenses out of which an amount of Rs.2 Lacs has suo-moto been disallowed by him and the balance amount of Rs.6.53 Lacs has been claimed as expenses. Similarly, out of travelling expenses of Rs.20.74 Lacs, the assessee has suo-moto disallowed Rs. 4 Lacs and claimed balance amount of Rs.16.74 Lacs as expenses. The aggregate of foreign traveling expenses comes to Rs.29.27 Lacs out of which the assessee has made suo-moto disallowance of Rs.6 Lacs. The Ld. AR has contended that the revenue, under similar circumstances, in subsequent years, have made adhoc disallowance of 20% against the same. However, we are of the opinion that each Assessment Year is a unique unit of assessment and principle of res- judicata do not apply to Income Tax Proceedings. The primary conditions of claiming the expenses, in terms of Section 37, is that the expenses have been incurred wholly and exclusively for the purpose of Business or profession. Although, the assessee has placed relevant invoices and relevant ledger extracts, however, no details of any conferences / seminars are available on record. Therefore, on the basis of material available on Rohan P.Shah Assessment Year 2008-09 record, the primary condition of claiming the same, in our opinion, has remained unfulfilled. The Ld. AR has contended that the assessee could not establish / demonstrate the same for want of time. Therefore, without delving much deeper in the issue, on the facts of the case, we restore the matter back to the file of Ld. AO to re-appreciate the evidences submitted by the assessee. The assessee, in turn, is directed to substantiate his claim in this regard failing which Ld. AO shall be at liberty to adjudicate the same on the basis of material available on record. Resultantly, this ground of revenue’s appeal stands allowed for statistical purposes.
Now adverting our attention to the second issue, we find that the classification of income from share trading as ‘business’ or ‘capital gains’ is dependent upon the facts and circumstances of a particular case and there is only a thin line separating the two view point. The CBDT has so far issued following instructions / guidelines so as to bring clarity on the issue: (i) Instruction No. 1827 dated 31/08/1989 (ii) Office Memorandum dated 13/12/2005 (iii) Circular No. 4/2007 dated 15/06/2007 (iv) Circular No. 6/2016 dated 29/02/2016 CBDT’s office memorandum dated 13/12/2005 list following Circumstances to be considered by the Assessing Officers in determining whether a person is a trader or an investor in stocks:- (i) Whether the purchase and sale of securities was allied to his usual trade or business/was incidental to it or was an occasional independent activity; (ii) Whether, the purchase is made solely with the intention of resale at a profit or for long- term appreciation and/or for earning dividends and interest. (iii) Whether scale of activity is substantial; Rohan P.Shah Assessment Year 2008-09 (iv) Whether transaction were entered into continuously and regularly during the assessment year. (v) Whether purchases are made out of own funds or borrowings; (vi) The stated objects in the Memorandum and Articles of Association in the case of corporate assessee; (vii) Typical holding period for securities bought and sold; (viii) Ratio of sales to purchase and holding. (ix) The time devoted to the activity and the extent to which it is the means of livelihood. (x) The characterization of securities in the books of account and balance sheet as stock-in- trade or investment. (xi) Whether the securities purchased or sold are listed or unlisted. (xii) Whether investment is in sister/related concerns or independent companies. (xiii) Whether transaction is by promoters of the company. (xiv) Total number of stock dealt in (xv) Whether money has been paid or received or whether these are only book entries".
As per Circular No. 4/2007 it is possible for a taxpayer to have two portfolios, i.e., an investment portfolio comprising of securities which are to be treated a capital assets and a trading portfolio comprising of stock-in-trade which are to be treated as trading assets. The above instructions have partially been modified with respect to listed securities in recent CBDT circular No. 6/2016 dated 29/02/2016 which lays down following factors to be considered for listed securities:- a) Where the assessee itself, irrespective of the period of holding of the listed shares and securities, opts to treat them as stock-in-trade, the income arising from transfer of such shares/securities would be treated as its business income, b) In respect of listed shares and securities held for a period of more than 12 months immediately preceding the date of its transfer, if the assessee desires to treat the income arising from the transfer thereof as Capital Gain, the same shall not be put to dispute by the Assessing Officer. However, this stand, once taken by the assessee in a particular Assessment Year, shall remain applicable in subsequent Assessment Years also and the taxpayers shall not be allowed to adopt a different/contrary stand in this regard in subsequent years; c) In all other cases, the nature of transaction (i.e. whether the same is in the nature of capital gain or business income) shall continue to be decided keeping in view the aforesaid Circulars issued by the CBDT.
Rohan P.Shah Assessment Year 2008-09 Further Apex Court in CIT v. Associated Industrial Development Co. (P.) Ltd. [1971] 82 ITR 586 (SC) has observed that:- “Whether a particular holding of shares is by way of investment or forms part of the stock-in- trade is a matter which is within the knowledge of the assessee who holds the shares and it should, in normal circumstances, be in a position to produce evidence from its records as to whether it has maintained any distinction between those shares which are its stock-in-trade and those which are held by way of investment.”
Applying the above principals upon the case in hand, we find that the assessee is a lawyer by profession and major portion of total income consist of professional income. A perusal of Balance Sheet reveals that the assessee reflects investment in securities under the head Investments and closing investment at year end is Rs.51.61 Lacs against which the assessee’s personal capital & unsecured loans stood at Rs.21.12 crores & Rs.31.80 Lacs. The other loans are car loans and loans against Fixed Deposits. A perusal of Share Income Chart placed in the paper book reveals that the assessee has transacted mostly in listed securities and the transactions are mostly delivery based transactions. The total holding period of all the scrips is 6601 days and average holding period comes to 57 Days and total number of unique trade days is 64 days. This data is nowhere controverted by the revenue before us. Moreover, latest CBDT Circular No.6/2016 which is clarificatory in nature applies to listed securities and directs AO not to disturb the stand taken by assessee provided the same is applied consistently. Hence, we find that their cannot be any Rohan P.Shah Assessment Year 2008-09 straight jacket formula to distinguish the same and further there cannot be any single decisive factor to determine the same but an overall view has to be taken keeping in mind peculiar facts and circumstances of the case. Accordingly, after weighing all the factors as cited above, we find ourselves in agreement with the view taken by CIT(A) and therefore, we are inclined to reject this ground of revenue’s appeal and confirm the order of Ld. CIT(A) in this regard.
Resultantly, the revenue’s appeal stands partly allowed for statistical purposes. Order pronounced in the open court on 04th October, 2017. Sd/- Sd/- (Saktijit Dey) (Manoj Kumar Aggarwal) �ाियक सद� / Judicial Member लेखा सद� / Accountant Member मुंबई Mumbai; िदनांक Dated : 04 .10.2017 Sr.PS:- Thirumalesh आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : अपीलाथ� / The Appellant 1. ��थ� / The Respondent 2. आयकर आयु�(अपील) / The CIT(A) 3. आयकर आयु� / CIT – concerned 4. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai 5. गाड� फाईल / Guard File 6.