Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2015 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (7) TMI 249 - AT - Income TaxProfits arising from purchase and sale of shares - Capital gain or business income - assessee is showing these shares in its investment portfolio in the books of accounts - Held that:- These shares have been valued at cost. At page 130 of the paper book, copy of Form No. 3CD-tax audit report is contained in which at Serial N. 8a in regard to nature of business or profession, it is stated that, assessee is in the business of share trading investments, financing and power generation and in Column No. 8b,it is stated that there is no change in the assessee’s business from earlier year. The assessee has given details of long term capital gain (STT) exempt u/ 10(38) (own) to demonstrate that the period of holding of the shares was more than one. The details of short term capital gains are given at pages 168 to 178 of paper book. From the above details it is evident that there is no change in the facts obtaining in the current year as compared to earlier years and, therefore, the decision of Tribunal in earlier years applies mutatis mutandis to the facts in the present assessment year, particularly because assessee has primarily sold the shares which have been treated as investments in earlier year. It is pertinent to observe that Assessing Officer has also followed the reasoning for A.Ys 2006 & 2007-08 in arriving at his conclusion that the shares were held as business asset and not as investment which has not been accepted by Tribunal as noted earlier. However, one aspect which needs clarification is in regard to Ld. CIT(A)’s finding in earlier years that gain arising out of sale of shares within 30 days is to be treated as business income which finding has been confirmed by Tribunal in earlier years. However, in the current year there is no such finding by Ld. CIT(A). Therefore, sale from all shares held as investment is to be assessed as short term or long term capital gain - Decided against revenue. Whether assessee case is squarely falls under speculative transactions as defined in sub section (5) of Section 73? - Held that:- It is evident from the balance sheet that loans and advances granted by assessee aggregated to ₹ 292,189,865/-on which assessee earned interest amounting to ₹ 40,56,653/- which is the main source of Assessee’s income. Thus, the principal business of the assessee was granting of loans and advances. Further, we find from the computation contained at pages 126 that the gross total income consists mainly of income which is chargeable under the head capital gains and income from other sources. Therefore, respectfully following the decision of Tribunal for earlier years, we uphold the order of Ld. CIT(A) in holding that the assessee’s income was not assessable as speculation profit either. - Decided against revenue.
|