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2010 (2) TMI 730 - AT - Income TaxCapital gain or business income - assessee was asked to state the reasons as to why short term capital gains should not be treated as trading income from professional services - CBDT Circular No.4 of 2007 dt.15.6.2007 - the facts are not in dispute inasmuch as it is not the case of the revenue that the assessee has not shown the investment in shares as investment in the balance sheets for the Assessment Years 2004-05 and 2005-06 - held that the profit on sale of shares is assessable under the head short term capital gain hold that the share transactions are in the nature of investment and the profit received therefrom is assessable as short term capital gain as shown by the assessee Regarding business development expenses - there is no dispute that the assessee has filed details of expenses supported by bills claiming that all the expenses have been incurred for conducting various seminars and meetings to educate and update its clients in respect of its business of financing - Held that the personal use by the partners out of the aforesaid sale promotion expenses is not ruled out even at this stage hence we restrict the disallowance to 5% as against 10% of total sale promotion expenses sustained by the ld. CIT(A) - Appeal is partly allowed
Issues Involved:
1. Treatment of short-term capital gains as business income. 2. Disallowance of car expenses and depreciation. 3. Partial disallowance of business development expenses. 4. Disallowance under Section 14A of the Income Tax Act. 5. Levy of interest under Sections 234A, 234B, 234C, and 234D. Issue-Wise Detailed Analysis: 1. Treatment of Short-Term Capital Gains as Business Income: The primary issue was whether the short-term capital gains of Rs.7,62,892/- should be treated as business income. The assessee argued that the shares were held as investments, not stock in trade, supported by the portfolio manager's services, substantial dividend income, and delivery-based transactions. The Assessing Officer (AO) rejected this, citing the engagement of a portfolio manager and the use of funds as indicative of trading intent. The CIT(A) upheld the AO's view, emphasizing the intent to do business over investment. The Tribunal, however, found that the revenue did not provide material evidence to contradict the assessee's claim of holding shares as investments. It noted the similarity in the pattern of transactions with other cases where short-term capital gains were accepted. Referring to the Bombay High Court's decision in CIT vs. Gopal Purohit, which treated delivery-based transactions as investment transactions, the Tribunal concluded that the assessee's share transactions were investments, and the profits should be treated as short-term capital gains. 2. Disallowance of Car Expenses and Depreciation: The AO disallowed 20% of car expenses and depreciation, amounting to Rs.41,886/-, due to the lack of evidence showing exclusive business use. The CIT(A) upheld this disallowance, citing the possibility of personal use. The Tribunal found that the assessee did not provide evidence of exclusive business use or personal vehicles for partners. It partially allowed the appeal by reducing the disallowance to 1/6th, considering the totality of circumstances. 3. Partial Disallowance of Business Development Expenses: The AO disallowed 10% of business development expenses (Rs.40,004/-) due to unverifiable claims of exclusive business use. The CIT(A) agreed, noting unclear purposes of the expenses. The assessee argued that the expenses were for client seminars and meetings, supported by bills. The Tribunal, acknowledging the potential for personal use, reduced the disallowance to 5%, balancing the need for verification with the nature of the expenses. 4. Disallowance under Section 14A: The assessee did not press this ground, and the Tribunal rejected it due to the lack of supporting material. 5. Levy of Interest under Sections 234A, 234B, 234C, and 234D: The assessee requested consequential relief, which the Tribunal noted as mandatory. The AO was directed to allow this relief, subject to the provisions of the Act. Conclusion: The Tribunal partly allowed the appeal, treating the share transactions as short-term capital gains, reducing disallowances on car expenses and business development expenses, and directing consequential relief for interest levies.
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