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2011 (1) TMI 1377 - AT - Income Taxtransactions of purchase and sale of shares - nature of trade - HELD THAT - we are of the view that if the principles laid down by the Tribunal in the case of Sarnath Infrastructure Ltd. 2007 (12) TMI 261 - ITAT LUCKNOW-B as well as the guidelines issued by the CBDT are applied to the facts of the present case, it clearly emerges that the transactions of purchase and sale of shares entered into by the assessee were in the nature of trade and the ld. CIT(A) was not justified in treating the said transactions as made by the assessee in the capacity of investor and trader merely on the basis of holding period. In that view of the matter, we set aside the impugned order of the ld. CIT(A) on this issue and restore that of the A.O. Ground No. (i) (ii) of the Revenue s appeal is accordingly allowed whereas ground No. 1 2 of the assessee s appeal are dismissed. claim for deduction on account of donations and rebate for STT - income from share transactions - business income - HELD THAT - Since we have already held that the entire profit arising from transactions of shares is chargeable to tax in the hands of the assessee under the head profits and gains of business/profession , we direct the A.O. to allow consequential relief to the assessee on account of donations and STT paid after necessary verification. Ground No. 3 of the assessee s appeal is accordingly treated as allowed.
Issues Involved:
1. Classification of income from share transactions as either business income or capital gains. 2. Determination of whether the assessee is an investor or trader in shares. 3. Treatment of short-term capital gains from shares held for less than 30 days. 4. Entitlement to deductions under Section 80G and rebate for Securities Transaction Tax (STT). Issue-wise Detailed Analysis: 1. Classification of Income from Share Transactions: The primary issue was whether the income from share transactions should be classified as business income or capital gains. The assessee, a partnership firm engaged in trading shares, securities, and investments, declared income under various heads: speculation loss, business income, short-term capital gains, and long-term capital gains. The Assessing Officer (A.O.) held that the assessee was a trader in shares, not an investor, and classified the entire profit from share transactions as business income. The A.O. based this on several observations, including the nature of business, frequency of transactions, and the systematic and organized manner in which the assessee conducted its activities. 2. Determination of Investor vs. Trader: The A.O. noted that the assessee was actively involved in futures and options transactions and had no other activities apart from share trading and speculation in commodities. The assessee argued that it treated futures and options transactions in commodities as speculative and those in shares as regular business transactions. The A.O. rejected this justification, stating that the nature and character of shares must be ascertained from the intention behind their acquisition. The A.O. found that the assessee's activities indicated a profit motive and a short-term holding period, suggesting a trading approach rather than an investment approach. 3. Treatment of Short-term Capital Gains: The Commissioner of Income Tax (Appeals) [CIT(A)] partially agreed with the A.O., holding that the assessee was both an investor and a trader. The CIT(A) directed that profits from shares held for less than 30 days be treated as business income, while those held for more than 30 days be treated as capital gains. This resulted in &8377; 15.72 lakhs being classified as business income instead of short-term capital gains. 4. Entitlement to Deductions and Rebate: The assessee contended that if the short-term capital gains were treated as business income, it should be allowed deductions under Section 80G for donations and a rebate for STT paid. The Tribunal directed the A.O. to allow consequential relief for donations and STT paid after necessary verification. Tribunal's Conclusion: The Tribunal upheld the A.O.'s decision, agreeing that the assessee was a trader in shares. It found that the transactions were carried out in a systematic and organized manner with a profit motive, indicating a trading activity. The Tribunal noted that the assessee's classification of shares as investments in its books was not conclusive and that the intention behind the transactions must be gathered from the facts and circumstances. The Tribunal set aside the CIT(A)'s order and restored the A.O.'s order, classifying the entire profit from share transactions as business income. Final Order: The appeal of the Revenue was allowed, and the appeal of the assessee was partly allowed. The Tribunal directed the A.O. to allow deductions for donations and STT paid after verification. Order Pronounced: The order was pronounced on 14th January 2011.
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