2017 (7) TMI 736 - HC - Income Tax

Income from sale or purchase of share - capital gain, long terms capital gain or as a stock in trades - Held that - Whether the sale or purchase of share has to be considered as short term capital gain, long terms capital gain or as a stock in trades, will have to be evaluated on the basis of facts in each case. In the case of assessee, for the previous assessment year, the Assessing Officer had accepted the income from the shares as short term and long term capital gain. The Tribunal relied on the judgment of the Apex Court in the case of P. M. Mohammed Meerakhan (P.M.) Vs. Commissioner of Income Tax 1969 (2) TMI 4 - SUPREME Court as observed that it is not possible to evolve any single test or formula which would apply in determining the transaction as adventure in nature of trade or not. It is also observed by the Apex Court in case of The Commissioner of Income Tax Vs. Madan Gopal Radhey 1968 (9) TMI 14 - SUPREME Court that there is no presumption that an acquisition of a commodity, even if it is an accretion to the stock in trade of the business, is an acquisition for the purpose of his business, in each case the question is one of intention to be gathered from the evidence of conduct and dealings by the acquirer with the commodity. It has been observed by the Tribunal that there is no evidence on record to show that the assessee has been churning same shares. The said finding is a finding of fact concurrently arrived at by the Commissioner and the Tribunal. From the evidence on record, it cannot be said that the said evidence is perverse. No substantial question of law arises.

Summary

Issues:
1. Whether trading in shares amounts to short term and long term capital gains or is considered as stock in trade.

Analysis:
The appellant argued that the Commissioner (Appeals) erred in categorizing trading in shares as capital gains, emphasizing that the repeated trading of five scripts resulted in quick profits, not capital gains. The appellant's motive was deemed to be earning quick profits rather than dividends, indicating a trading intention. The Tribunal allegedly overlooked the Assessing Officer's reasoning. On the other hand, the respondent contended that the Assessing Officer's observation of repeated trading was flawed, with the Tribunal finding no repetition in the transactions. The Tribunal's decision was based on evaluating each case's facts to determine whether share transactions constitute capital gains or stock in trade.

The Tribunal referenced judgments by the Apex Court to establish that determining whether a transaction is an adventure in the nature of trade requires a case-specific evaluation. The absence of evidence indicating the appellant churned the same shares supported the conclusion that the shares were held as stock in trade. Both the Commissioner and the Tribunal concurred on this factual finding, which was not deemed perverse based on the evidence. Consequently, it was concluded that no substantial question of law arose, leading to the dismissal of the appeal without costs.