2013 (9) TMI 1086 - AT - Income Tax

Share transactions - STCG OR business income - Held that - Number of scrips and transactions giving rise to Short Term Capital Gain are not very huge so as to indicate that the intention of purchase and sale was not the investment but trading. Further when the Assessing Officer has accepted the claim of the Short Term Capital Gain in the earlier year then in the same facts and circumstances the rule of consistency has to be maintained as held by the Hon ble High Court in case of CIT Vs Gopal Purohit (2010 (1) TMI 7 - BOMBAY HIGH COURT ). Accordingly, we set aside the orders of the authorities below and allowed the claim of the assessee.

Summary

Issues:
1. Appeal against Commissioner of Income Tax(Appeals) orders for assessment year 2008-09.
2. Determination of short term capital gains as business income.
3. Discrepancy in the number of transactions and holding period of shares.
4. Whether transactions were for investment or trading purposes.
5. Consistency in treatment of short term capital gains.

Issue 1: Appeal against Commissioner of Income Tax(Appeals) orders for assessment year 2008-09
The judgment involves two appeals by a husband and wife against the respective orders of the Commissioner of Income Tax(Appeals) for the assessment year 2008-09. The appeals were heard together due to a common issue raised by both parties.

Issue 2: Determination of short term capital gains as business income
The assessee, engaged in trading through F&O and investing in shares, declared short term capital gains which the Assessing Officer treated as business income. The CIT(A) upheld this decision based on the nature of transactions and the assessee's involvement in trading activities.

Issue 3: Discrepancy in the number of transactions and holding period of shares
The discrepancy arose regarding the number of transactions carried out by the assessee, with the authorities mistakenly considering 525 transactions instead of the actual 79 transactions. The judgment clarified that multiple transactions for a single order should not be counted separately.

Issue 4: Whether transactions were for investment or trading purposes
The tribunal analyzed various factors to determine if the transactions were for investment or trading. Factors considered included the holding period of shares, absence of borrowed funds, treatment of shares as investments in the books, and the intention behind the transactions. The tribunal concluded that the majority of transactions resulted in long term capital gains, indicating an investment motive.

Issue 5: Consistency in treatment of short term capital gains
The judgment emphasized the importance of maintaining consistency in treating short term capital gains, especially when the Assessing Officer had accepted similar claims in previous assessment years. Citing precedents and the rule of consistency, the tribunal set aside the lower authorities' orders and allowed the claim of short term capital gains for both the husband and wife.

In summary, the judgment addressed multiple issues related to the treatment of short term capital gains as business income, discrepancies in transaction counts, distinguishing between investment and trading activities, and the importance of consistency in tax assessments. The tribunal ultimately ruled in favor of the assessee, allowing the claim of short term capital gains for both parties based on the analysis of relevant factors and legal principles.