2019 (1) TMI 603 - HC - Income Tax

Income from sale of shares - business income or capital gain Capital Gains - exemption u/s. 10(38) - majority of the shares were not purchased by the settler from the market and whether the shares received by way of Employee Stock Option Plan or purchased from the market, were held by the settler for a long period of time - Held that - Whether sale of shares by Assessee would invite capital gain or would be business income, is mixed question of law and facts. Whether the Assessee is engaged in the business of buying and selling of shares or is a mere investor, would depend on range of factors. In the present case, the Tribunal has noted the relevant facts and analyzed such facts in proper perspective. To reiterate, the shares in question were not purchased by the Trust at all. They were settled by the settler of the Trust. The Settler himself had not purchased majority of these shares but had received by way of Employee Stock Option Plan. The shares so received as well as small numbers of shares purchased by the settler were held by himself for over two years before settling them in the Trust. No question of law arises. - decided against revenue

Summary

Issues:
1. Whether the Tribunal was correct in treating the addition made as Capital Gains exempt u/s. 10(38) instead of Business Income.
2. Whether the Tribunal should have considered the income as Business Income based on the facts brought on record.

Analysis:
1. The case involved an Appeal against the Judgment of the Income Tax Appellate Tribunal concerning the Assessment Year 2010-11. The Respondent-Assessee, a registered Trust, had sold shares and earned income of ?14,69,09,814. The Assessing Officer treated the income as business income, contrary to the Assessee's claim of capital gains from the sale of shares.

2. The Commissioner of Income Tax (Appeals) allowed the Assessee's Appeal, leading the Revenue to appeal before the Tribunal. The Tribunal dismissed the Revenue's Appeal, emphasizing that the Trust's principal object was succession planning and intergenerational transfer of income. The Tribunal noted that the shares were held for a significant period, were not purchased from the market, and were treated as investments, not stock-in-trade.

3. The Tribunal observed that the Trust was not questioned as sham or bogus, and the sale of shares was for diversification of the portfolio, not for business purposes. The Tribunal concluded that the sale of shares did not constitute a business activity but was a prudent decision to secure investments. The Tribunal highlighted that the Trust was expressly prohibited from undertaking any business activity.

4. The Tribunal's decision was based on the fact that the shares were not purchased by the Trust but were settled by the settler, who had held them for over two years before transferring them to the Trust. The Tribunal held that no question of law arose in determining whether the Assessee was engaged in the business of buying and selling shares or was a mere investor.

5. The Court upheld the Tribunal's decision, stating that the treatment of the income as capital gains or business income depended on various factors and factual analysis. Since the shares were settled and not purchased by the Trust, and considering the holding period and intent of the Trust, the Court found no grounds to interfere with the Tribunal's decision.

6. Consequently, the Appeal was dismissed, affirming the Tribunal's ruling that the income from the sale of shares by the Assessee was not to be considered as business income but as exempt capital gains under section 10(38) of the Income Tax Act, 1961.