2014 (12) TMI 1187 - AT - Income Tax

Short term capital gain v/s business income - Held that - The assessee is an investor who has been assessed as investor since A.Y 2000- 01 onwards. We, therefore do not find any reason to deviate from the rule of consistency. We, therefore, do not find any reason in the findings of the Ld. CIT(A) to treat the assessee as an investor where the holding period was less than 7 days. We, accordingly set aside the findings of the Ld. CIT(A) and direct the AO to treat the entire Short Term Capital Gains as such. - Decided in favour of assessee.

Summary

Issues:
1. Classification of income from Short Term Capital Gains as business income or capital gains for A.Y. 2008-09.

Analysis:
The judgment by the Appellate Tribunal ITAT Mumbai involved cross appeals by the assessee and the department against the order of the Ld. CIT(A)-27, Mumbai for A.Y. 2008-09. The primary issue revolved around the treatment of income from Short Term Capital Gains. The assessee contended that the Ld. CIT(A) incorrectly classified &8377; 6,23,695/- as business income, while the Revenue argued that the Ld. CIT(A) erred in treating &8377; 18,58,332/- as Short Term Capital Gain. Both appeals were heard together due to the common factual background.

The Assessing Officer (AO) during scrutiny assessment observed Short Term Capital Gains, Long Term Capital Gain, Speculation profit, and Income from Other Sources in the assessee's return. The AO considered the profit motive in share transactions due to the quantity and amounts involved, leading to the conclusion that the assessee was engaged in business activities. The Ld. CIT(A) noted the assessee's history of investing in shares since 2000 and consistently showing gains, accepted in previous assessments. The Ld. CIT(A) highlighted the retention of a substantial number of scrips annually, indicating investment intent. Consequently, the Ld. CIT(A) directed the AO to treat a portion of the income as business income and the rest as Short Term Capital Gain.

Upon careful review, the Appellate Tribunal noted the assessee's consistent declaration of capital gains since A.Y. 2000-01, with the AO accepting Long Term Capital Gains for the relevant year. The Tribunal emphasized the absence of borrowed funds for share investments and the assessee's investor status despite significant losses. Noting the settlement of transactions through actual delivery of shares, the Tribunal found no evidence to classify the assessee as a trader. Ultimately, the Tribunal upheld the assessee's investor status and directed the entire Short Term Capital Gains to be treated as such, overturning the Ld. CIT(A)'s decision.

In conclusion, the Appellate Tribunal allowed the assessee's appeal and dismissed the Revenue's appeal, emphasizing the assessee's consistent investor status and the lack of grounds to deviate from past assessments. The judgment clarified the distinction between investor and trader status based on transaction settlement methods and historical investment patterns, resolving the classification issue regarding Short Term Capital Gains for A.Y. 2008-09.