2011 (11) TMI 24 - AT - Income Tax

Exemption u/s 10(38) - Long Term Capital Gains - Transfer of shares - point of transfer - conversion of investment into stock in trade or actual sale of shares - Held that - when once the assessee has converted a capital asset into stock-in-trade the capital gain arising on such transaction of transfer shall be deemed to be the income of the previous year in which transfer took effect. That was the ordinary position where the capital gain would have been liable to tax in the AY 2005-06 itself. Now the provisions of Section 45(2) make an exception to the generality of provisions of Section 45(1). Where it is a case of conversion of stock-in-trade the profit arising on transfer by way of conversion shall be chargeable to income tax as its income in the previous year in which such stock-in-trade is actually sold or otherwise transferred by him and for the purpose of computation of capital gain the fair market value of the asset on the date of such conversion or treatment shall be deemed to be the full value of consideration received or accruing as a result of such conversion meaning thereby the year of assessability of income to tax is postponed to date on which actual sale of this stock-in-trade takes place. As far as the benefit of Section 10(38) is concerned the assessee shall not be eligible for this benefit at the first stage of chargeability of capital gains because the deemed sale is the point of conversion into stock-in-trade which had not suffered STT. Further with regards to the second part of the transaction the assessee is not eligible for benefit under Section 10(38) because the second part of the transaction is purely a business transaction and provisions of Section 10(38) are applicable only in terms of long term capital assets - Decided against the assessee. Applicability of provisions of section 112 - Held that - Department is justified in computing the income tax on such long term capital gain at the rate of 20% in terms of Section 112(1)(c) which are the provisions of the Act applicable to the case of the assessee the assessee being a non-resident. - Decided against the assessee.

Summary

Issues Involved:
1. Denial of benefit under Section 10(38) of the Income-tax Act, 1961.
2. Claim for reduction in short-term capital gain.
3. Taxation rate of long-term capital gain.
4. Levy of interest under Section 234B.
5. Withdrawal of interest under Section 244A.
6. Assessment of total income.

Detailed Analysis:

1. Denial of Benefit under Section 10(38):
The main issue pertains to the Assessing Officer's (AO) action in denying the benefit under Section 10(38) of the Income-tax Act, 1961, which led to the addition of long-term capital gains to the total income of the assessees. The AO argued that the transfer of shares occurred when the assessee converted personal investments into stock-in-trade on April 1, 2005. Although the shares were sold during the Financial Year 2005-06 through a stock exchange and Securities Transaction Tax (STT) was paid, the AO maintained that the conversion itself constituted a transfer. The AO relied on Circular No.397 and the decision in G.D. Aggarwala v. DCIT to support this view. The assessee's contention was that the long-term capital gains should be exempt under Section 10(38) as the shares were sold through a recognized stock exchange and STT was paid. The Tribunal held that the benefit under Section 10(38) is not applicable at the first stage of conversion into stock-in-trade as it did not suffer STT. Furthermore, the second part of the transaction is a business transaction, and Section 10(38) applies only to long-term capital assets.

2. Claim for Reduction in Short-Term Capital Gain:
The assessee argued that the authorities erred in denying the claim for reduction in short-term capital gain based on a revised computation of income filed during the assessment proceedings. The Tribunal did not find merit in this contention, as the revised computation was not accepted by the AO or the CIT(A).

3. Taxation Rate of Long-Term Capital Gain:
The assessee contended that the long-term capital gain should be taxed at 10% instead of 20%. The Tribunal referred to Section 112(1)(c) and clarified that the tax rate for long-term capital gains in the case of a non-resident is 20%. The proviso for a 10% tax rate under Section 112(1)(d) applies only to residents, not non-residents.

4. Levy of Interest under Section 234B:
The assessee challenged the levy of interest under Section 234B as wholly illegal and excessive. The Tribunal did not address this issue as it did not arise from the impugned order.

5. Withdrawal of Interest under Section 244A:
The assessee contested the withdrawal of interest under Section 244A. Similar to the previous issue, the Tribunal declined to address this ground as it did not arise from the impugned order.

6. Assessment of Total Income:
The assessee argued that the total income assessed by the AO and confirmed by the CIT(A) was arbitrary, unjust, and excessive. The Tribunal upheld the order of the CIT(A), finding no merit in the assessee's contentions.

Conclusion:
The Tribunal dismissed the appeals of the assessees, upholding the AO's denial of benefit under Section 10(38), the 20% tax rate on long-term capital gains for non-residents, and the overall assessment of total income. The issues regarding the levy of interest under Sections 234B and 244A were not addressed as they did not arise from the impugned order.