Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (3) TMI 592 - MADRAS HIGH COURT

2016 (3) TMI 592 - MADRAS HIGH COURT - TMI - Short term capital loss on sale of shares - treated as a speculative loss by virtue of Explanation to Section 73 of the Act when actual delivery and possession has been made in respect of sale of shares - Held that:- The nature of the transaction alleged is important, it has been stated the order of Commissioner of Appeals that the appellant has not purchased the shares as a dealer; shares were purchased because of certain financial problems of the si .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y when there is settlement otherwise than by delivery speculative transaction can be thought of. In the present case, it is not so. As the main activity is only in manufacture and sale of yarn, the purchase of shares, having not been regular, should be construed only as an investment. When there is no systametic or organised course of activity and when there is no regularity in the transaction and as the purchase is infact an one time activity it cannot be construed as a speculative transaction. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

would not come under the provisions of Section 43 (5) of the Income Tax Act, 1961. When the provisions of Section 43 (5) is not applicable to the facts of this case, the contention that the case of the assessee would be covered under explanation to Section 73 of the Income Tax Act, 1961, cannot be accepted. As the genuineness of the transaction is not doubted the contention of the Revenue that it is a case of avoidance of tax liability by dubious means also cannot be accepted. - Decided in favo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

appellant filed return of income on 26.12.1990, admitting total income of ₹ 3,69,53,050/-. The assessing officer passed an order under Section 143 (3) of the Income Tax Act, computing the total income at ₹ 3,72,70,680/-. The assessee went on appeal and the Commissioner (Appeals), while declining to accept the case of the assessee, quantified the total income at ₹ 3,67,68,820/-. Based on the directions of the Commissioner of Appeals, the revised order was passed, by the assessi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

#8377; 25,47,443/-, would have to be considered as short term captial loss. This loss was claimed to be on account of sale of shares of the sister concern, which was held by the assessee. But that contention was not accepted and the finding of the Revenue was that, it was a 'speculation loss' and therefore that must be carried forward and to that extent, income had to be enhanced. Challenging the re-assessment, assessee filed the appeal before the Commissioner of Appeals. 2.2. The Commis .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

findings of the assessing officer. Therefore, the assessee is on appeal raising the following substantial question of law: 1. Whether on the facts and circumstances of the case, the Appellate Tribunal was right in law in holding that the short term capital loss on sale of shares made by the appellant company is to be treated as a speculative loss by virtue of Explanation to Section 73 of the Act when actual delivery and possession has been made in respect of sale of shares? 2. Whether on the fa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

es, but indulged in purchase and sale of share as an occassional transaction. 3.1. The contention of the assessee is that the regularity of the transaction and the intention behind the transaction are important, while considering the aspect of 'speculation loss' and that as the sale in shares was neither systametic nor organised course of activity, the transaction cannot be said to be a speculative transaction. It is also contended that the intention of the transaction was towards invest .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

reciate the contentions raised on both sides, it is necessary (a) to appreciate the meaning of 'speculation' and (b) to look into the relevant provisions relating to speculative transaction, speculative business, and the deeming provisions as dealt with in the Income Tax Act, 1961, (along with explanations). 4.1. Section 2 (13) defining business, Explanation 2 to Section 28 dealing with speculation loss / business, Section 43 dealing with speculative transaction, etc., are relevant provi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ot exhaustive as held in the case of [CIT vs. A.Dharma Reddy, (1969) 73 ITR 751, 755 (SC). The Hon 'ble Mr. Justice Venkataraman Aiyar, speaking for the court in Mazagaon Dock Ltd. vs. CIT [(1958) 35 ITR 368, 376 (SC)], explained 'business' as a word of wide import and in fiscal statutes it must be construed in a broad rather than a restricted sense. The definition being inclusive and not exhaustive, is indicative of extension and expansion and not restriction. The word business is o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

business in that commodity [Bengal & Assam Investors Ltd. vs. CIT, (1966) 59 ITR 547 (SC)]. In order to constitute an activity as business activity, there are certain essential requirements which must be fulfilled. Firstly, it must be a continuous course of dealing and, secondly, it must be carried on with a profit motive [Mrs.Kamala Muthia v. CIT, (2003) 259 ITR 184, 187 (Mad)]. 4.3. 28. Profits and gains of business or profession The following income shall be chargeable to income- tax und .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ing thereto; (b) any person by whatever name called, managing the whole or substantially the whole of the affairs in India of any other company, at or in connection with the termination of his office or the modification of the terms and conditions relating thereto; (c) any person, by whatever name called, holding an agency in India for any part of the activities relating to the business of any other person, at or in connection with the termination of the agency or the modification of the terms a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ntrol) Act, 1947 (18 of 1947 );] (iiib) cash assistance (by whatever name called) received or receivable by any person against exports under any scheme of the Government of India;] (iiic) any duty of customs or excise re- paid or re- payable as drawback to any person against exports under the Customs and Central Excise Duties Drawback Rules, 1971;] (iv) the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession; 4.4. Expla .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

scope of the expression speculative transaction , it must be a transaction in which a contract for purchase or sale of any commodity, including stocks and shares is periodically or ultimately settled otherwise than by the actual delivery or transfer of the commodity or scrips, as held in the case of Bhandari Rajmal Kushalraj v. CIT, (1974) 96 ITR 401, 403 (Mys). The expression ultimately settled otherwise than by actual delivery or transfer of the commodity or scrips in the Income-tax Act defin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

peculative it may be in fact; and (ii) even if the original intention was not to gamble in differences, if in fact the contract is settled by payment of the difference, it is a speculative transaction for the purposes of the Act. 4.5. Section 43, to the extent it is relevant, reads as follows:- 43. In Sections 28 to 41 and in this section, unless the context otherwise requires- (5) Speculative transaction means a transaction in which a contract for the purchase of sale of any commodity, includin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

act in respect of stocks and shares entered into by a dealer or investor therein to guard against loss in his holdings of stocks and shares through price fluctuations; or (c) a contract entered into by a member of a forward market or a stock exchange in the course of any transaction in the nature of jobbing or arbitrage to guard against loss which may arise in the ordinary course of his business as such member (or) (d) An eligible transaction in respect of trading in derivatives referred to in c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f 1992) in accordance with the provisions of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) or the Securities and Exchange Board of India Act, 1992 or the Depositories Act, 1996 (22 of 1996) and the rules, regulations or bye-laws made or directions issued under those Acts or by banks or mutual funds on a recognized stock exchange; ;and (B)which is supported by a time stamped contract note issued by such stock broker or sub-broker or such other intermediary to every client indicatin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ve transaction has been defined only in Section 43 (5). At the same time, it is qualified, i.e. that the scope of the definition is restricted in its application to working out the mandate of Sections 28 to 41 of the Act. In terms of the Explanation to Section 73 (4) in the case of a company, business of purchase and sale of shares is deemed to be speculation business. However, certain companies are excluded from this Explanation which are:- (i) a company whose gross total income consists mainly .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lation business. (2) Where for any assessment year any loss computed in respect of a speculation business has not been wholly set-off under sub-section (1), so much of the loss as is not so set-off or the whole loss where the assessee had no income from any other speculation business, shall, subject to the other provisions of this Chapter, be carried forward to the following assessment year, and- (i) it shall be set-off against the profits and gains, if any, of any speculation business carried o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ny other than a company whose gross total income consists mainly of income which is chargeable under the heads Interest on securities , Income from house property , Capital gains and Income from other sources , or a company [the principal business of which is the business of trading in shares or banking or the granting of loans and advances consists in the purchase and sale of shares of other companies, such company shall, for the purposes of this section, be deemed to be carrying on a speculati .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rs P. Ltd., (2010) 322 ITR 43 (Bom)]. By virtue of the legal fiction created by the Explanation inserted to section 73, even transactions which are not speculative transactions within the meaning of Section 43(5), should be deemed to be speculative if those come within the purview of the Explanation to Section 73 - RPG Industires Ltd. v. CIT, (2011) 338 ITR 313 (Cal). In order to fall within the net of section 73, there need be a business of speculative transactions and it must be carried on . W .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ff against other business income. Section 73 provides that such loss can be set off only against income from speculative business. The object of the Explanation is to explain the scheme in the main provision to situations where part of business is from speculative transactions. To that extent the assessee will be deemed to be carrying on speculative business - Aravali Engineers P. Ltd. v. CIT, (2011) 335 ITR 508 (Punj). 5. The learned counsel for the assessee has relied upon the following decisi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

usiness. It is, therefore, necessary in each case to examine and find out whether the speculative transactions carried on by an assessee are of such a nature as to constitute a business. It may be that, in a given case, a single speculative transaction, on application of proper tests, may be found to constitute 'speculation business'. It may equally be true that a plurality of speculative transactions, on application of proper tests, constitute 'speculation business'. It would de .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a situation that such dealing in shares is deemed to be carrying on a speculation business. According to Mr.Chandrakumar, learned counsel for the Revenue, the definition of "business" is quite wide and any particular venture will fall within the definition of "business". Learned counsel referred to the definition in section 2(13) wherein "business" includes any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ge may be enough provided it is shown to the satisfaction of the court that the plunge is made in the waters of trade; but the sale of a piece of property - if that is all that is involved in the plunge - may easily fall short or anything in the nature of trade. Transaction of sale are characteristic of trade, but they are not necessarily distinctive of it; much depends on the circumstances." (ii) Commissioner of Income Tax vs. Lakshmi Mills Co. Ltd. (2007 290 ITR 663 (Mad)):- In the decisi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n section 32(3) should be confined only to deeming the UTI a company and the income from units a dividend. In the absence of any specific deeming provision in regard to the units as shares it would be erroneous to extend the provisions of section 32(3) for the purpose of holding the unit a share. Held accordingly, that buying and selling of units by the assessee company could not be treated as a speculative business. The Explanation to Section 73 of the Income-tax Act did not apply. Loss in buyi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ly settled otherwise than by the actual delivery or transfer of the commodity or scrips. The meaning and scope of this expression is no more res integra in view of the decision of the Supreme Court in CIT v. Shantilal P. Ltd. [1983] 144 ITR 57. In that case, the Supreme Court explained the distinction between "a settlement of the contract otherwise than by actual delivery of the goods" and "breach of contract". It was observed (at page 60) : ".... A contract can be said .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

es entitled to receive from the party who broke the contract compensation for any loss or damage caused to him thereby. There is no reason why the sense conveyed by the law relating to contracts should not be imported into the definition of 'speculative transaction'. The award of damages for the breach of a contract is not the same thing as a party to the contract accepting satisfaction of the contract otherwise than in accordance with the original terms thereof. It may be that in a gene .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pts instead of it any satisfaction which he thinks fit. We are concerned with the sense of law, and it is that sense which must prevail in sub-section (5) of section 43. Accordingly, we hold that a transaction cannot be described as a 'speculative transaction' within the meaning of sub-section (5) of section 43, Income-tax Act, 1961, where there is a breach of the contract and on a dispute between the parties damages are awarded as compensation...." The above observation makes it ab .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d therefore the commission should not be assessed under the head "speculation business". In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct. The reason is that there is no element of speculation whatever, in the commission income received by the assessee. The commission was earned and received by the assessee independently of any fluctuation in the market and no risk was involved in the earning of the commission and so it .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

scripts. However, certain exceptions to the definition of speculative transaction are provided in a proviso to section 43(5). Clauses (a), (b) and (c) of the proviso enumerate the contracts which are not deemed to be speculative transactions. Clause (b) provides that a contract in respect of stocks and shares entered into by a dealer or investor to guard against loss in his holdings of stocks and shares through price fluctuations shall not be deemed to be a speculative transaction. Proviso (b) .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

about the existence of the contract and the intention to enter into such a contract, on which the answer to the question whether a transaction is a hedging transaction or not rests, is primarily one of fact, necessarily to be determined on appreciation of facts surrounding the transaction. (vi) Commissioner of Income Tax vs. H.Holock Larsen (160 ITR 67 (SC)):- Held, (i) that the question whether the transactions of sale and purchase of shares were trading transactions or were in the nature of i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to these. ... Investors face an unknown and uncertain future and try to diversify the investments. As a general law, it was emphasised at page 603 of the book, growth of capital was a desirable objective of portfolio management. This did not mean that every investor must invest in growth stocks; this would be inconsistent with many investor's needs. A fund can be built up from reinvested income as well as through the purchase of growth shares. A large fund does provide more income for the i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eculative business and therefore, the assessee is not entitled to set-off the loss as against its business income the following decisions are relied upon by the learned counsel for the respondent:- (i) R.P.G. Industries Ltd. v. CIT and another (2011) 338 ITR 313 (Cal.):- In the case of S.Sundaram Pillai v. V.R.Pattabiraman, AIR 1985 SC 582, the Supreme Court laid down the general rule of 'interpreatation of an explanation' in the following way:- It is now well settled that an Explanation .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

arge the scope of the original A section which it explains, but only makes the meaning clear beyond dispute." Swarup in 'Legislation and Interpretation' very aptly sums up the scope and effect of an Explanation thus: "Sometimes an explanation is appended to stress upon a particular thing which ordinarily would not appear clearly from the provisions of the section. The proper function of an explanation is to make plain or elucidate what is enacted in the substantive provision an .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that it is supposed to explain. It is axiomatic that an explanation only explains and does not expand or add to the scope of the original section.. The purpose of an explanation is, however, not to limit the scope o the main provision.. The construction of the explanation must depend upon its terms, and no theory of its purpose can be entertained unless it is to be inferred from the language used. An 'explanation' must be interpreted according to its own tenor ." .... Thus, from a c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ingful and purposeful, (d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and (e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the wo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r shipping business, rehabilitation fund, expenditure on certain eligible objects or schemes, deductions, amounts not deductible, profits chargeable to tax, etc. The assessee is no doubt correct in contending that the only definition of derivatives is to be found in Section 43 (5); yet the Court cannot ignore or overlook that the definition - to the extent it excludes such transactions from the mischief of the expression "speculative transactions" is confined in its application. Parlia .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

richest man in the world and who is known as the 'Sage of Omaha or Oracle of Omaha'. Derivatives, according to him, can push companies on to a spiral that can lead to a corporate melt down....? The High Court then, after examining the nature and characteristics of derivatives transactions, observed that: 5. What are these 'derivatives' which have gained such a great deal of notoriety? In simple terms, derivatives are financial instruments whose values depend on the value of other .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ent relative to other types of contracts that have a similar response to changes in market conditions; and (c) that is settled at a future date. ITA 94/2013 Page 10 Actually, derivatives are assets, whose values are derived from values of underlying assets. These underlying assets can be commodities, metals, energy resources, and financial assets such as shares, bonds, and foreign currencies. (iii) Eastern Aviation and Industries v. CIT, 208 ITR 1023:- 6. The expression "investment company& .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n one sense "profits and gains" represent "positive income" whereas "losses" represent "negative income". In other words, "loss" is "negative profit". Both positive and negative profits are of revenue character. Both must enter into computation, wherever it becomes material, in the same mode of the taxable income of the assessee. Reference, in this context, may be made to the decision of the Supreme Court in CIT v. Harprasad and Co. P. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

purpose other than that for which it is created. The fiction created in the Explanation does not take away the real object and purport of section 73 of the Income-tax Act, 1961. Section 73 generally provides that any loss arising out of speculation business can be set off only against another speculation business of the assessee. The word assessee in sub-section (1) covers all types of assessees as mentioned in section 2(7) of the Act which includes individuals and companies. Sub-section (2) of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ch is chargable under the heads Interest on securities Income from house property , Capital gains and Income from other sources or a company the principal business of which is the business of banking or granting of loan and advances consists in purchase and sale of shares of other companies, shall be for the purpose of this section, be deemed to be carrying on speculation business to the extent to which the business consists of the purchase and sale of shares. Thus, the Explanation has really em .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

business activity of the assessee concerned. It is not necessary that the assessee must carry on speculative business exclusively it can be one of the businesses but this must be distinct and separate from any other business. The definition of speculative transaction in section 43(5) demands that there must be actual delivery or transfer of the commodity or scrip. Only if it is by way of a paper transaction it can be said to be a speculative transaction. The Explanation to section 73 will be ap .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nd reasons need not be looked into. 6.1. The decisions relied upon by the learned counsel for the respondent are not applicable to the facts of the case. 7. As held in the decisions relied upon by the learned counsel for the assessee, the facts and circumstances of each case is relevant to find out, whether the transaction alleged would amount to speculative transaction or not. 8. In order to decide that, the nature of the transaction alleged is important, it has been stated the order of Commiss .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version