2010 (7) TMI 555 - AT - Income Tax

Whether the profit on sale of investments in shares through portfolio management scheme as trading profit or capital gain - In the instant case the assessee claimed in the return of income Long Term capital gain of19,05,537/- and short term capital gain of11,37,486/- on sale of shares which were held as investment by it - Assessing Officer treated the entire income derived from transactions under Portfolio Management Scheme as business income - The settled position of law in this regard is that whether the asset acquired is investment or stock-in-trade in the hands of the assessee In view of the absence of material evidence The Learned Assessing Officer is directed to re-adjudicate the issue afresh keeping in view the observations made hereinabove in this order - Appeal is allowed for statistical purpose

Summary

Issues:

1. Determination of whether income earned on the sale of shares is to be assessed under the head capital gains or business income.

Analysis:

The judgment by the Appellate Tribunal ITAT, Ahmedabad involved a dispute regarding the classification of income earned from the sale of shares by the assessee. The Assessing Officer treated the income derived from the Portfolio Management Scheme as business income, while the assessee claimed it as capital gains. The Tribunal noted that the intention of the assessee at the time of acquiring the shares is crucial in determining their classification as investment or trading assets. The Tribunal emphasized that the assessee may hold shares for both investment and trading purposes, leading to distinct tax implications based on the nature of the transactions.

The Tribunal referred to CBDT Circular No.4 of 2007, which provides guidelines for distinguishing between shares held as stock-in-trade and shares held as investment. The Circular highlights the importance of evaluating various factors such as the nature of transactions, maintenance of books of accounts, and the motive behind the purchases and sales of shares in determining the nature of income. It also acknowledges the possibility of an assessee having separate investment and trading portfolios, resulting in income under both capital gains and business income heads.

In this case, the Tribunal observed that the lower authorities primarily focused on the volume of transactions without considering other relevant factors. Both parties failed to provide essential material, such as the company's Balance Sheet reflecting the classification of shares and the presence of borrowed capital for share acquisition. Due to the lack of comprehensive information, the Tribunal decided to remand the issue back to the Assessing Officer for a fresh adjudication. The Assessing Officer was instructed to consider all relevant facts, especially for shares held for over a year, and provide a detailed reasoning for the classification decision. The Tribunal directed the Assessing Officer to allow the assessee a reasonable opportunity for a hearing during the fresh adjudication process.

In conclusion, the Tribunal allowed the appeal for statistical purposes and directed a reevaluation by the Assessing Officer based on a comprehensive analysis of all relevant factors to determine the appropriate classification of income earned from the sale of shares.