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2013 (12) TMI 69 - AT - Income TaxShare trading activity - Held that - The assessee has made several transactions of purchase and sales during the relevant year under consideration and the high volume of frequency and regularity of the activity - Following PVS Raju vs. Addl. CIT 2011 (7) TMI 818 - Andhra Pradesh High Court - The activity carried on by the assessee in purchase and sale of shares would partake the character of business activity and it cannot be said that the assessee had merely made investments in shares - The CBDT circular No.4/2007 specifically states that no single principle can be taken and the total effect of all the principles should be considered to determine whether in a given case the shares are held by the assessee as investment or stock in trade - The share trading done by the assessee is nothing but trading activity done regularly with the sole intention of earning profit and hence, the entire income is to be treated as Income from Business - The voluminous share transactions were in the ordinary line of the assessee s business, purchase of shares by them was not for the purpose of earning dividend but with the dominant intention of resale in order to earn profits. The profits made by assessee was not of mere enhancement of value of shares, but was a profit made in the carrying on of a business scheme of profit making. The repetition and continuity of the transactions gave them a flavour of Trade - Decided against assessee.
Issues Involved:
1. Whether the income from share trading should be classified as 'Short Term Capital Gains' or 'Business Income'. Detailed Analysis: Issue 1: Classification of Income from Share Trading Facts of the Case: The assessee filed a return of income for the assessment year 2008-09, declaring a total income of Rs. 1,08,87,040/-. The case was selected for scrutiny, and the assessee admitted short-term capital gains from trading in shares amounting to Rs. 95,89,511/-. The Assessing Officer (A.O.) proposed to treat this income as 'business income' under the provisions of section 2(13) of the Income Tax Act, 1961, due to the regularity and profit motive involved in the share trading activities. Assessee's Contention: The assessee argued that the intention was to invest, not to trade, and cited several judicial pronouncements to support the claim that the income should be treated as capital gains. The decisions cited include CIT vs. NSS Investments, CIT vs. Mohakampur ICE and Cold Storage, Raja Bahadur Kamakha Narain Singh vs. CIT, and CIT vs. Sutlej Cotton Mills Supply Agency, where it was held that the intention of investment should be assessed as capital gains. Assessing Officer's Conclusion: The A.O. did not accept the assessee's contentions based on several factors: - Substantial nature of transactions - Manner of maintaining books of accounts - Magnitude of purchases to sales - Continuous trading activity throughout the year - High turnover of Rs. 13 crores - Use of borrowed funds for trading activities The A.O. concluded that the share trading activity was a regular business with the sole intention of earning profit, and hence, the income should be treated as 'Income from Business'. CIT(A) Decision: The CIT(A) upheld the A.O.'s decision by examining the intention and conduct of the assessee in the share market. The CIT(A) noted that the assessee's transactions showed a pattern of trading rather than investment, with regular entries, exits, and re-entries in various scrips. The CIT(A) also referenced several judicial pronouncements, including G. Venkataswamy Naidu & Co., Eclat Constructions (P) Ltd. vs. CIT, and Ramnarain Sons (P) Ltd. vs. CIT, to support the conclusion that the transactions were in the nature of trade. Tribunal's Analysis: The Tribunal considered the high volume, frequency, and regularity of the assessee's trading activities. It noted that the turnover for the year was Rs. 13 crores, and the trading was continuous throughout the year. The Tribunal also observed that the assessee maintained books of accounts for share trading and financed transactions with borrowed funds. The Tribunal referred to the CBDT circular No. 4/2007, which states that the total effect of all principles should be considered to determine whether shares are held as investment or stock in trade. Judicial Precedents: The Tribunal distinguished the facts of the present case from the case of Spectra Shares & Scrips Pvt. Ltd. vs. CIT and relied on the judgment in PVS Raju & Others vs. Addl. CIT, which held that voluminous share transactions with the dominant intention of resale for profit should be treated as business income. The Tribunal also referenced the decision in ACIT vs. Anil Kumar Jain, which supported the view that the assessee was carrying on a business activity of trading in shares. Conclusion: The Tribunal concluded that the share trading done by the assessee was a regular business activity with the sole intention of earning profit. Therefore, the income should be treated as 'Income from Business'. The appeal of the assessee was dismissed, and the order of the lower authorities was confirmed. Order Pronounced: The order was pronounced in the open court on 29.11.2013.
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