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2017 (5) TMI 1666 - AT - Income TaxGains earned from share transactions engaging PMS Portfolio Management Service - characterization of income - correct head of income - capital gain or busniss income - contention of the assessee is that the assessee has invested lump sum amount through PMS - HELD THAT - Commissioner of Income Tax (Appeals) has accepted the contentions of assessee by following the order of Tribunal in the case of KRA Holding & Trading P. Ltd. 2011 (5) TMI 498 - ITAT PUNE and ARA Trading & Investments P. Ltd. 2009 (8) TMI 815 - ITAT PUNE . The assessee had availed discretionary Portfolio Management Services to manage its investment activities. Under such circumstances the discretion to invest in specific stock, the quantum of investment, time of investment /disinvestment is entirely of Portfolio Manager. Similar issue had come up before the Co-ordinate Bench of the Tribunal in the case of Shri Apoorva Patni 2012 (9) TMI 828 - ITAT, PUNE wherein after considering the decisions rendered in the cases of KRA Holding & Trading P. Ltd. Vs. Dy. Commissioner of Income Tax (supra) and ARA Trading & Investments P. Ltd. Vs. Dy. Commissioner of Income Tax (supra) held that the profit arising on investment carried out by the assessee through PMS does not result in gain assessable under the head business income. - Decided in favour of assessee.
Issues Involved:
1. Disallowance under Section 14A of the Income Tax Act. 2. Treatment of income from Portfolio Management Services (PMS) as Capital Gains or Business Income. Issue-wise Detailed Analysis: 1. Disallowance under Section 14A of the Income Tax Act: The assessee filed its return of income for the assessment year 2008-09, declaring a total income of ?1,19,09,750/-. During scrutiny assessment, the Assessing Officer made a disallowance of ?9,97,425/- under Section 14A of the Income Tax Act, 1961. The Commissioner of Income Tax (Appeals) upheld this disallowance. However, during the appeal, the assessee's representative, Shri C.H. Naniwadekar, stated that they did not wish to press the ground of disallowance under Section 14A. Consequently, the tribunal dismissed the assessee's appeal on this ground as not pressed. 2. Treatment of Income from Portfolio Management Services (PMS) as Capital Gains or Business Income: The primary contention in the Department's appeal was the treatment of income earned from PMS. The Assessing Officer had treated the Short/Long Term Capital Gains from trading in shares and mutual funds through PMS as Business Income, arguing that the frequency of transactions indicated a motive for profit through quick trading. The Commissioner of Income Tax (Appeals) disagreed, treating the income as Capital Gains, relying on previous Tribunal decisions, notably in the cases of KRA Holding & Trading P. Ltd. and Shri Apoorva Patni. The tribunal reviewed the facts and precedents. It noted that the assessee had availed discretionary PMS, where the Portfolio Manager had full discretion over investment decisions. The tribunal observed that the Commissioner of Income Tax (Appeals) had correctly followed the Tribunal's earlier decisions, which held that gains from discretionary PMS are derived from investment activities, not trading. The tribunal also addressed the Assessing Officer's objections regarding the volume and frequency of transactions and the motive behind earning dividends. It was noted that the volume and frequency of transactions were not excessively high and were consistent with investment activities. The tribunal emphasized that decisions regarding the purchase and sale of shares were made by the Portfolio Manager, not the assessee, under the discretionary PMS arrangement. Further, the tribunal found that the Assessing Officer's assertion that the transactions were of a short-term nature and thus constituted business activity was not supported by facts. The tribunal highlighted that some investments were held for up to 18 months, and the long-term capital gains were also treated as business income by the Assessing Officer, which was unjustified. In conclusion, the tribunal affirmed the findings of the Commissioner of Income Tax (Appeals) that the income from PMS should be treated as Capital Gains and not Business Income. The Department's appeal was dismissed, and the tribunal found no merit in the Revenue's arguments. Final Judgment: Both the appeal of the assessee regarding the disallowance under Section 14A and the Department's appeal concerning the treatment of income from PMS were dismissed. The tribunal upheld the Commissioner of Income Tax (Appeals)'s decision to treat the income from PMS as Capital Gains.
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