2017 (2) TMI 549 - HC - Income Tax

Income arising from sale of shares /mutual funds - capital gain OR business income - Held that - Considering the material on record more particularly number of transactions holding period and the treatment given with respect to similar income in the earlier Assessment Years when the similar income is considered as capital gain and not treated as business income it cannot be said that the learned CIT(A) as well as the learned tribunal have committed any error in holding the income of the assessee arising from sale of shares /mutual funds for which short term capital gain /long term capital gain was claimed as capital gain instead of business income.

Summary

Issues Involved:
1. Determination of whether income from the sale of shares/mutual funds should be treated as capital gain or business income for the Assessment Years 2007-08 and 2008-09.

Analysis:
1. The Appeals involved a common question of law and facts regarding the treatment of income from the sale of shares/mutual funds as capital gain or business income for the same assessee but for different Assessment Years.

2. For the Assessment Year 2007-08, the Assessing Officer disagreed with the assessee's claim of short term and long term capital gains from the sale of shares/mutual funds and treated it as income from business. However, the CIT(A) allowed the claim after considering factors like the number of transactions, holding period, and previous treatment of similar income as capital gain in earlier years. The Tribunal upheld the CIT(A)'s decision.

3. Similar treatment was confirmed for the Assessment Year 2008-09 by the CIT(A) and Tribunal, leading to the same conclusion regarding the income from the sale of shares/mutual funds.

4. The revenue contended that the income should be treated as business income due to the frequency of transactions and holding period. They argued against relying on a previous decision involving a different assessee.

5. The Court, after reviewing the material on record, upheld the CIT(A)'s decision for both Assessment Years. The Court found no error in treating the income from the sale of shares/mutual funds as capital gain based on various factors and consistent treatment in previous years.

6. The Court agreed with the CIT(A) and Tribunal's reasoning, emphasizing the importance of considering factors like the number of transactions and holding period in determining the nature of income from the sale of shares/mutual funds.

7. Ultimately, the Court dismissed both Appeals as no substantial question of law was found to arise from the case, affirming the treatment of the income as capital gain instead of business income based on the evidence and legal guidelines presented.