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2016 (5) TMI 29 - AT - Income TaxIncome arising from sales of shares - treated as business income or short term capital gain - Held that - Since the assessee has treated the securities as investment and not as stock in trade in all the years, therefore, in view of the CBDT Circular No. 6/2016 dated 29.02.2016, the revenue is not permitted to take a contrary view in the present year and claimed that the security is stock in trade and, therefore, the profit/gain caused to the assessee be treated as business income. In our view, there is no merit in the contention of the revenue and is deserves to be dismissed in view of the circular. - Decided against revenue
Issues Involved:
1. Whether the income arising from sales of shares should be treated as income from short-term capital gains or as business income. Detailed Analysis: Background and Facts: The appeal by the revenue arises from the order dated 18.03.2013 passed by the CIT (A)-I, Jaipur for the A.Y. 2008-09. The primary issue is whether the income from the sale of shares should be classified as short-term capital gains or business income. The assessee filed a return of income declaring a total income of ?85,86,760/-, which included short-term capital gains from share transactions amounting to ?73,70,214/-. The AO scrutinized the case under section 143(3) and observed that the transactions were substantial, frequent, and systematic, suggesting a profit motive rather than investment. Assessment by AO: The AO analyzed the D-mat accounts and broker transactions, concluding that the activities were business-oriented due to the high volume, frequency, and systematic nature of the transactions. The AO noted that the holding period for shares was very short, often only a few days to a few months, which contradicted the assessee's claim of investment intent. The AO rejected the assessee's explanation that the transactions were for investment purposes, citing the short holding periods and the systematic trading pattern. Consequently, the AO treated the income from these transactions as business income rather than short-term capital gains. Appeal to CIT (A): The assessee appealed to the CIT (A), who accepted the assessee's claim. The CIT (A) noted that the AO made the addition in a routine manner without substantial evidence. The CIT (A) highlighted that in the previous assessment year (2007-08), similar short-term capital gains declared by the assessee were not contested by the department. The CIT (A) referenced the case of Nagindas P Sheth (HUF) vs. ACIT, where it was held that frequent transactions alone do not classify an assessee as a trader if the shares are declared as investments in the books of accounts. The CIT (A) concluded that the transactions should be considered as investments and the profits taxed under capital gains. Revenue's Argument: The revenue contended that the income from the sale of shares should be treated as business income due to the nature of the transactions. They relied on the AO's findings and requested that the CIT (A)'s order be set aside. Assessee's Argument: The assessee argued that they consistently declared gains/losses under capital gains, even when it was disadvantageous. They provided evidence of declaring short-term capital gains in previous years, which were accepted by the department. The assessee cited several judicial precedents supporting their claim that the transactions should be treated as investments. Tribunal's Decision: The Tribunal considered the CBDT Circular No. 6/2016 dated 29.02.2016, which provides guidelines for determining whether income from the sale of shares should be treated as capital gains or business income. The Circular emphasizes that if shares are held for more than 12 months and treated as investments, the income should be considered as capital gains. The Tribunal noted that the assessee consistently treated the shares as investments in all years. Therefore, in light of the CBDT Circular, the revenue cannot take a contrary view for the current year. The Tribunal dismissed the revenue's appeal and upheld the CIT (A)'s order, confirming that the income should be treated as short-term capital gains. Conclusion: The appeal by the revenue was dismissed, and the order of the CIT (A) was upheld. The income from the sale of shares was confirmed to be treated as short-term capital gains rather than business income, in accordance with the CBDT Circular and the consistent treatment of shares as investments by the assessee.
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