2012 (7) TMI 298 - AT - Income Tax

Sale of shares capital gain or Business transaction Held that - Assessee had an intention to maximize his return on the money sought to be invested and certainly it cannot be said to be a case of undertaking any trading per se - some of the other transactions in Tech Mahindra shares have been classified by the assessee himself as business transactions primarily on account of it being carried out in smaller lots and involving very small period of holding or being squared up on the same day, would not imply that the purchase of 5000 Tech Mahindra shares cannot be claimed by the assessee as investment in nature - transactions of 5000 Tech Mahindra shares stood on a different footing and complexion than the other transactions in the same scrip carried out during the year - Assessing Officer directed to treat the transaction of 5000 Tech Mahindra shares in the nature of investment and assess the same as short term capital gain and not business income - appeal of the assessee is allowed.

Summary

Issues:
Treatment of investment and sale of 5000 Tech Mahindra Shares as business income or short term capital gain.

Analysis:
The appeal concerned the treatment of the investment and sale of 5000 Tech Mahindra Shares by the assessee as either business income or short term capital gain for the assessment year 2007-08. The Assessing Officer and the CIT(A) had classified the transactions as business income, whereas the assessee contended they should be treated as short term capital gain.

The assessee, an individual retired from a municipal corporation, argued that the investment in Tech Mahindra shares was based on specific information about a potential business deal, resulting in a substantial profit upon sale. The assessee maintained that the purchase of 5000 shares was distinct from other trading transactions in the same scrip, emphasizing the investment nature of this particular transaction.

The Revenue, represented by the Ld. DR, defended the CIT(A)'s decision, stating that the purchase of 5000 Tech Mahindra shares was not adequately proven to be for investment purposes. It was highlighted that there was an intermingling of various transactions in Tech Mahindra shares, with some transactions admitted by the assessee as business transactions.

Upon careful consideration, the Tribunal acknowledged the distinction between the purchase of 5000 Tech Mahindra shares and other trading transactions in the same scrip. The Tribunal noted the advanced age and lack of business history of the assessee, along with the specific circumstances surrounding the purchase of the 5000 shares. The Tribunal concluded that the assessee had successfully demonstrated the investment nature of the 5000 shares transaction, directing the Assessing Officer to treat it as short term capital gain rather than business income.

In the final verdict, the Tribunal allowed the appeal of the assessee, pronouncing the order in open court on 28.05.2012.