2014 (1) TMI 1307 - AT - Income Tax

Claim of short term capital gain treated as business income Profits from purchase and sale of shares Held that - The assessee was mainly engaged in the business of Arbitrage and Jobbing for which he maintained his office and kept staff for which certain expenses were incurred - the portfolio of shares was maintained by the assessee simply as an Investor and not as a Trader - The business of Arbitrage and Jobbing is distinct from that of investment in the purchase and sale of shares - shares were held by the assessee as investment and not stock in trade decided against Revenue. Deletion made on account of arbitration charges deduction claimed on arbitration charges paid Held that - The details placed before the first appellate authority in support of claim for deduction on account of arbitration charges, were not filed before the Assessing Officer and further the learned CIT(A) did not obtain any remand report from the A.O it would be proper to set aside the order and remit the matter back to the AO for fresh adjudication Decided partly in favour of Revenue.

Summary

Issues involved:
1. Treatment of profit from purchase and sale of shares as short term capital gain or business income.
2. Deletion of addition of arbitration charges debited by the assessee in his books of account.

Issue 1: Treatment of profit from purchase and sale of shares
The appeal dealt with the question of whether the profit arising from the purchase and sale of shares should be classified as short term capital gain or business income. The assessee, engaged in Arbitrage and Jobbing business, declared business income and also showed short term capital gain from the sale of shares. The Assessing Officer treated the profit as business income due to the absence of opening and closing stock of shares and the utilization of unsecured loans for transactions. However, the CIT(A) overturned this decision, highlighting the distinction between the business of Arbitrage and Jobbing and investment in shares. The Tribunal observed that the shares were held as capital assets, not stock in trade, and upheld the CIT(A)'s order, concluding that the profit from the sale of shares was rightly treated as short term capital gain.

Issue 2: Deletion of addition of arbitration charges
The second ground of appeal concerned the deletion of an addition of arbitration charges debited in the assessee's books of account. The assessee claimed a deduction for these charges, but the Assessing Officer disallowed it due to lack of supporting evidence. The CIT(A) deleted the addition based on certain material. During the appeal, it was revealed that the details supporting the deduction were not presented to the Assessing Officer, and no remand report was obtained. The Tribunal decided to set aside the order on this issue and directed the assessee to provide necessary evidence to the Assessing Officer. The Assessing Officer was instructed to reconsider the deduction claim after allowing the assessee a reasonable opportunity to be heard, indicating that the matter needed further examination.

In conclusion, the Tribunal partially allowed the appeal, upholding the treatment of profit from the sale of shares as short term capital gain and directing a reevaluation of the deduction claim for arbitration charges. The judgment emphasized the importance of distinguishing between different types of income and the necessity of providing supporting evidence for claims during assessments.