2013 (11) TMI 898 - AT - Income Tax

Purchase and sale of share & securities transaction to be treated as Business income instead of Income under the head short term or Long term capital gains Held that - Looked into various incidents and aspects of the transactions, viz., the number and volume of the transactions; frequency; holding period; utilization of borrowed capital, etc., which have to be considered in their entirety, even as it is trite that even a single transaction could be in the nature of trade, so as to qualify for being considered as a business transaction or on trading account - In the instant case, assessee has itself classified the said transactions as share trading transactions in the tax audit report - The total number of transactions works to 150 and 120 in the case of both the assesses i.e. father and son respectively; the corresponding turnover being at Rs.489.79 lakhs and Rs.412.12 lakhs, which, in view of the short holding period, would work out to a (turnover) ratio at as high as 10, i.e., of the capital employed, including that borrowed, on which interest has been claimed and allowed - It is a clear case of systematic activity being perused with a profit motive, deploying capital and bearing the concomitant risk, both business and financial, inasmuch as the borrowed capital stands also deployed - Therefore, no infirmity inflicts the Revenue finding their nature as of business, and assessing the income accordingly as business income Decided against the Assessee.

Summary

Issues Involved:
1. Treatment of Long Term Capital Gains (LTCG) and Short Term Capital Gains (STCG) as 'income from other sources.'
2. Treatment of income from share transactions through other brokers as 'business income' instead of STCG.

Issue-wise Detailed Analysis:

1. Treatment of LTCG and STCG as 'income from other sources':

Background: A survey under section 133A of the Income Tax Act, 1961, was conducted at the premises of M/s. Mahasagar Securities Pvt. Ltd. (MSPL) and its director, revealing that they were providing accommodation entries for LTCG and business losses. The appellants, Shri Ratanchand J. Oswal and Shri Rishi R. Oswal, were found to be beneficiaries of these entries. They admitted to routing income through these entries to avail concessional tax rates and exemptions under section 54F of the Act.

Contention by Assessee: The appellants argued that there was no admission of the share transactions being bogus and that the 'admission' was made to purchase peace and avoid penalties, which were not honored by the Revenue. They relied on the Tribunal's order for earlier years, which found the transactions genuine, and argued against the extrapolation of findings to the current year.

Revenue's Argument: The Revenue relied on the admission by Shri Ratanchand J. Oswal and the modus operandi explained by Shri Mukesh M. Choksi. It argued that the transactions for the current year should be treated similarly to those of the preceding years, which were admitted as income from other sources.

Tribunal's Findings: The Tribunal found the Revenue's inference reasonable, treating the transactions for the current year at par with those of the preceding years. The Tribunal noted that the assessee's argument of coercion was not credible, given the absence of any retraction of the admission. The Tribunal upheld the Revenue's treatment of LTCG and STCG as income from other sources, dismissing the assessees' grounds.

2. Treatment of income from share transactions through other brokers as 'business income' instead of STCG:

Contention by Assessee: The appellants argued that the transactions were genuine and should be treated as STCG, relying on the Tribunal's order for earlier years.

Revenue's Argument: The Revenue provided detailed findings on the nature of the transactions, including the number and volume of transactions, frequency, holding period, and utilization of borrowed capital, concluding that the transactions were in the nature of business.

Tribunal's Findings: The Tribunal found the Revenue's findings consistent with the material on record, noting the systematic activity pursued with a profit motive, deploying capital and bearing business and financial risks. The Tribunal upheld the Revenue's treatment of the income as business income, dismissing the assessees' grounds.

Conclusion: The appeals by the assessees were dismissed, and the Tribunal confirmed the assessment of the impugned income as business income and income from other sources.