2012 (2) TMI 586 - AT - Income Tax

Summary

Issues Involved:
1. Disallowance of short-term capital loss.
2. Treatment of loss as speculative loss u/s 73.

Summary:

1. Disallowance of short-term capital loss:

The assessee filed a return of income for AY 2002-03, showing a short-term capital loss of Rs. 58,29,228/- from the sale of shares. The AO disallowed this claim, stating that the transactions were not genuine and were conducted to create artificial losses. The AO noted that the transactions were not done through a recognized stock exchange, lacked transaction ID and time stamp, and involved in-house deals with brokers, which were not reported to the stock exchange. Furthermore, no delivery of shares was made to or from the assessee's demat account. The AO concluded that these transactions were a colorable device to avoid tax.

The CIT(A) upheld the AO's decision, emphasizing that the assessee had not engaged in share trading in previous years and that all transactions resulted in losses, indicating a deliberate attempt to offset capital gains. The CIT(A) also noted that the transactions were off-market and lacked actual delivery of shares, thus treating them as speculative.

2. Treatment of loss as speculative loss u/s 73:

The CIT(A) further held that the loss should be treated as speculative loss u/s 73, as the assessee was not in the business of banking or granting loans and advances. The explanation to section 73 deems the purchase and sale of shares by a company as speculative business, and thus the loss could not be set off against capital gains.

Tribunal's Decision:

The Tribunal examined the transactions with M/s. Thakkar Share Brokers Pvt. Ltd. and found sufficient evidence to prove that the transactions were genuine. The broker had confirmed the transactions and provided relevant documents, including the demat account statement and Sauda Bahi. The Tribunal held that off-market transactions are not illegal and that the assessee's transactions with Thakkar Share Brokers were genuine. Therefore, the Tribunal allowed the set-off of short-term capital losses against the gains for transactions conducted through Thakkar Share Brokers.

However, for transactions with M/s. Labh Investments, the Tribunal noted that the assessee failed to provide essential documents such as the demat account statement and Sauda Bahi. In the absence of these documents, the Tribunal upheld the disallowance of the loss by the authorities below.

Conclusion:

The appeal was partly allowed. The Tribunal permitted the set-off of short-term capital losses for transactions conducted through M/s. Thakkar Share Brokers Pvt. Ltd., but upheld the disallowance for transactions with M/s. Labh Investments.