1971 (8) TMI 56 - HC - Income Tax

Whether transactions of sale and purchase of shares are trading transactions or whether they are in the nature of investment is a question of law there is no formula of universal application for determining this question and every case has to be decided on its own facts Whether the assessee was a dealer in shares in the accounting periods relevant to the assessment year Held no

Summary

Issues Involved:
1. Whether the assessee was a dealer in shares in the accounting periods relevant to the assessment years 1959-60 and 1960-61.

Detailed Analysis:

1. Background of the Case:
The assessee, a partner in a firm converted into a private limited company, was allotted shares against his interest in the partnership. He acquired additional shares, including right shares offered by the company, and sold some of these shares over the years. The Income-tax Officer initially assessed the assessee as an investor but later deemed him a dealer in shares from the financial year 1954-55 onwards, bringing the profits from share transactions to tax as revenue receipts. This view was upheld by the Appellate Assistant Commissioner and the Income-tax Appellate Tribunal.

2. Key Question for Determination:
The Tribunal referred the question to the court: "Whether, on the facts and in the circumstances of the case, the assessee was a dealer in shares in the accounting periods relevant to the assessment years 1959-60 and 1960-61?"

3. Contentions of the Assessee:
The assessee argued that his intention in selling right shares and renouncing rights was not to make a profit but to prevent a fall in the value of his investments. The sales were also motivated by the need to manage his overdraft account and acquire further right shares. Thus, he contended that he remained an investor.

4. Contentions of the Revenue:
The revenue contended that the assessee acquired right shares for trading purposes, not as mere accretions to his original holdings. The acquisitions were aimed at making a profit, showing that the assessee had converted his investment shares into stock-in-trade. The frequency of transactions and use of borrowed funds further indicated a trading motive.

5. Legal Principles and Precedents:
The court noted that determining whether transactions are trading or investment involves assessing the assessee's intention and the legal requirements associated with trade and business. Each case must be decided on its own facts, and there is no universal formula. Previous assessments as an investor are not binding for subsequent years, as there is no res judicata or estoppel by record in tax matters.

6. Analysis of Transactions:
The court examined the assessee's transactions, dividing them into pre-1954 and post-1954 periods. The transactions in shares of other companies were negligible, so the focus was on shares of M/s. Larsen & Toubro. The court considered the assessee's holding and sales of shares from 1945-46 to 1959-60, noting that right shares were acquired to prevent capital erosion due to depreciation in the value of old shares.

7. Intention Behind Transactions:
The court found that the dominant motive behind acquiring and selling right shares was to prevent an erosion of the assessee's capital. The assessee's actions were aimed at "nursing" his investments, not trading for profit. The fact that the transactions yielded a profit was incidental and did not change the nature of the transactions.

8. Borrowing Funds:
The court noted that borrowing funds to acquire right shares was not decisive of a trading transaction. There was no evidence to show the extent of borrowing or the gain relative to the interest payable on the borrowed funds.

9. Issue of Right Shares:
The court explained the implications of issuing right shares and the consequential depreciation in the value of old shares. The assessee's acquisition and sale of right shares were aimed at protecting his investment, not trading.

10. Conclusion:
The court concluded that the assessee's transactions were not trading transactions. The dominant intention was to protect his investment, and there was no change in this intention. The court answered the referred question in the negative, holding that the assessee was not a dealer in shares for the assessment years 1959-60 and 1960-61.

11. Costs:
The Commissioner was ordered to pay the costs of the reference to the assessee.