2017 (12) TMI 656 - AT - Income Tax

Nature of income - sale of shares and securities - business income or short term capital gain - Held that - We are of the view that in assessee s case under consideration, the Department had been accepting the same account of income as short-term capital gain in assessment years 2005-06 to 2007-08. We note that the Department has been consistently accepting the assessee as an Investor and not a trader, in past assessment years therefore, we do not uphold the order of the ld. CIT(A), following the Rule of consistency.The revenue should follow the consistency in taxing a particular income of the assessee. For that we rely on the judgment of the Hon ble Supreme Court in RadhasoamiSatsang vs. CIT (1991 (11) TMI 2 - SUPREME Court). So, we do not uphold the order of the ld. CIT(A) and we direct the CIT(A) to treat the assessee as an investor TDS u/s 194A - addition u/s 40(a)(ia) for non-deduction of TDS against payment of interest on loan - Held that - The computation of income contained in the return of income does not show any income under the head Business or Profession . The Assessee has not claimed deduction of interest. So there is no question of making addition. The borrowings were not utilized in acquisition of shares. As the transactions of shares have mostly been treated as done on investment account, therefore, there is no basis for addition of interest u/s.40(a)(ia) and hence we confirm the order passed by CIT(A). Addition on account of low drawing by the assessee - Held that - A.O. has not brought on record unusually high level of standard of living, if any. In the family of 4-5 persons drawing aggregating to ₹ 5,59,958/- appears reasonable on the facts on record. Therefore, considering the factual position, we do not find any infirmity in the order passed by the CIT(A), therefore, we confirm the order passed by the CIT(A).

Summary

Issues:
1. Treatment of a sum as business income instead of short-term capital gain
2. Disallowance of TDS against payment of interest on loan
3. Addition made on account of low drawing by the assessee

Issue 1: Treatment of a sum as business income instead of short-term capital gain:
The cross-appeals were filed by both the Assessee and Revenue against an order passed by the Commissioner of Income Tax (Appeals) in relation to the Assessment Year 2008-09. The primary contention revolved around the categorization of a sum of money as business income or short-term capital gain. The Assessing Officer considered the purchase and sale of shares by the Assessee as a business activity, leading to the treatment of the income as business income. However, the Assessee argued that the income was derived from investing surplus money in the capital market and should be classified as short-term capital gain. The Commissioner of Income Tax (Appeals) partially allowed the Assessee's appeal, directing the Assessing Officer to treat a portion of the income as business income and the remaining as short-term capital gain. On further appeal, the Tribunal held that the Department had consistently treated the Assessee as an investor in past assessment years and should maintain consistency. Relying on the principle of consistency, the Tribunal directed the Commissioner to treat the Assessee as an investor, thereby allowing the Assessee's appeal and dismissing the Revenue's appeal.

Issue 2: Disallowance of TDS against payment of interest on loan:
The Revenue raised a ground related to the disallowance of TDS against the payment of interest on a loan. The Assessing Officer disallowed the expenses related to interest paid to certain entities under section 40(a)(ia) of the Income Tax Act due to the non-deduction of tax at source. The Assessee contended that the provisions of section 44AB were not applicable as they had consistently acted as an investor in shares, making the disallowance unjustified. The Tribunal observed that the Assessee's return of income did not show any income under the head "Business or Profession," and as the borrowings were not utilized in acquiring shares, there was no basis for the disallowance under section 40(a)(ia). Consequently, the Tribunal confirmed the order passed by the Commissioner of Income Tax (Appeals) in this regard, leading to the dismissal of the Revenue's appeal on this issue.

Issue 3: Addition made on account of low drawing by the assessee:
Another ground raised by the Revenue was related to an addition made on account of low drawings by the Assessee. The Assessing Officer questioned the adequacy of the drawings made by the Assessee and his family members for household expenses. The Assessee argued that the total withdrawals by all family members were sufficient to cover household expenses, and the total amount contributed by the family members should be considered reasonable. The Tribunal found that the total drawings appeared reasonable for a family of 4-5 persons and noted that no evidence was presented to suggest an unusually high standard of living. Consequently, the Tribunal upheld the order passed by the Commissioner of Income Tax (Appeals) in this matter, resulting in the dismissal of the Revenue's appeal on this issue.

This detailed analysis of the legal judgment highlights the key issues involved, the arguments presented by the parties, and the Tribunal's decisions on each issue, ensuring a comprehensive understanding of the case.