2011 (8) TMI 975 - AT - Income Tax

Undisclosed investments - Motive of assessee - Held that - Income earned on shares were regularly assessed by the Department as long-term/short-term capital gains. Dividend earned thereon was also assessed as income from other sources. There was no change in the intention of the assessee in acquiring these shares during the year under consideration nor in the method of accounting for these shares in the books of account. In the course of scrutiny assessment, after applying its mind the Assessing Officer accepted the long-term capital gains and short-term capital gains offered by the assessee, because the transactions were not frequent and the shares were held as investment in the same manner as was held in the earlier years. The Assessing Officer also found that the interest paid on borrowing was also not claimed as business expenditure nor claimed or allowed as set-off against the interest income - During the year, the total number of transactions were 37. Out of the total short-term capital gains of Rs. 66,87,198, about 90 per cent. of shares were held for six months and above. The short-term capital gains with respect to the shares held for one month to three months worked out to be Rs. 2,37,744. However, only in respect of a transaction entered into intra-trade, short-term capital gain of Rs. 23,475 was earned. By applying any test as discussed by the learned Commissioner of Income-tax, it cannot be said that such transactions were in the nature of business and trade - Furthermore, acquisition of shares with the help of borrowed fund is no more decisive of the true nature of transaction and dominant motive of the assessee - Following decision of H. Holck Larsen v. CIT 1971 (8) TMI 56 - BOMBAY High Court - Decided in favour of assessee. Jurisdiction of CIT u/s 263 - Held that - The power of suo motu revision under sub-section (1) of section 263 is in the nature of supervisory jurisdiction and the same can be exercised only if both the circumstances specified therein exist, viz., (i) the order is erroneous ; (ii) by virtue of the order being erroneous prejudice has been caused to the interests of the Revenue. It has, therefore, to be considered firstly as to when an order can be said to be erroneous. An order cannot be termed as erroneous unless it is not in accordance with law. If an Income tax Officer acting in accordance with law makes certain assessment, the same cannot be branded as erroneous by the Commissioner simply because according to him the order should have been written more elaborately. This section does not visualise a case of substitution of judgment of the Commissioner for that of the Income-tax Officer, who passed the order, unless the decision is held to be erroneous - Decided in favour of assessee.

Issues Involved:
1. Legality of the Commissioner of Income-tax's order under section 263.
2. Classification of transactions as business transactions or capital gains.
3. The assessee's intention and motive behind transactions.
4. Frequency and volume of transactions.
5. Consistency in assessment of income from shares.

Issue-wise Detailed Analysis:

1. Legality of the Commissioner of Income-tax's Order under Section 263:
The primary issue was whether the Commissioner of Income-tax's order setting aside the assessment under section 143(3) was valid. The assessee argued that the order was "bad in law" as it was based on a different opinion from the Assessing Officer. The Tribunal emphasized that for the Commissioner to invoke section 263, the order must be both erroneous and prejudicial to the interests of the Revenue. The Tribunal concluded that the Assessing Officer had applied his mind and made a tenable decision, which could not be deemed erroneous merely because the Commissioner disagreed. Thus, the Tribunal found no merit in the Commissioner's order under section 263.

2. Classification of Transactions as Business Transactions or Capital Gains:
The Commissioner of Income-tax held that the transactions of acquisition and sale of investments should be treated as business transactions rather than capital gains. However, the Tribunal noted that the shares were held as investments in the books of account and that the income from these shares had been consistently assessed as long-term/short-term capital gains in previous years. The Tribunal found that the transactions were not frequent and were held as investments, thus supporting the classification as capital gains.

3. The Assessee's Intention and Motive Behind Transactions:
The Commissioner argued that the assessee's motive was to trade in shares for profit, evidenced by frequent transactions and the use of borrowed funds. However, the Tribunal emphasized that the assessee's intention was to earn dividends and capital appreciation, as shown by the consistent classification of shares as investments and the absence of claims for business expenditure on interest paid on borrowings. The Tribunal concluded that the intention and motive were aligned with investment rather than trading.

4. Frequency and Volume of Transactions:
The Commissioner highlighted the frequency and volume of transactions, noting 27 transactions during the year, some of which were on the same date. The Tribunal, however, found that the number of transactions was not significant enough to classify them as business activities. It was noted that 90% of the shares were held for six months or more, and only a small portion of the gains arose from short-term holdings. The Tribunal concluded that the frequency and volume did not indicate a business activity.

5. Consistency in Assessment of Income from Shares:
The Tribunal stressed the importance of consistency in the treatment of income from shares. It cited the Supreme Court's dismissal of a special leave petition in the case of CIT v. Gopal Purohit, which emphasized uniformity in treatment when facts and circumstances are identical across different years. The Tribunal found that the assessee had consistently classified the shares as investments and that the income had been assessed as capital gains in previous years. This consistency supported the assessee's position.

Conclusion:
The Tribunal concluded that the Commissioner of Income-tax's order under section 263 was not justified. The Assessing Officer's original assessment was found to be tenable, and the transactions were correctly classified as capital gains. The appeal of the assessee was allowed, and the order under section 263 was quashed. The Tribunal emphasized the importance of consistency and the proper application of legal principles in determining the nature of transactions.

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