2015 (8) TMI 311 - AT - Income Tax

Transaction of shares - short term capital gains or business income - Held that - In the present appeal, we note that the assessee made investment in shares with intention to earn dividend income on appreciation of price of shares. Therefore, it cannot be said that the assessee was doing business. See Shantilal M Jain vs ACIT 2011 (4) TMI 42 - ITAT MUMBAI , Janak S Ranawala(2006 (12) TMI 261 - ITAT MUMBAI) , CIT vs N.S.S. Investment Pvt Ltd. 2005 (4) TMI 45 - MADRAS High Court and CIT vs. Associated Industrial Development Company 1971 (9) TMI 3 - SUPREME Court Thus we do not find any merit in the action of AO for treating the short term capital gain as business income. - Decided in favour of assessee.

Summary

Issues:
Treatment of short term capital gains as business income.

Analysis:
The appellant appealed against the CIT(A)'s order treating short term capital gains as business income. The AO accepted the long term capital gain but treated short term capital gains as business income. The CIT(A) upheld the AO's decision. The Tribunal found that the assessee was investing in shares as an investor, and the short term capital gain had been accepted in previous assessment years. The principle of consistency applies when there is no change in facts and circumstances. The Tribunal noted that the intention of the assessee was to earn dividend income and appreciate the price of shares, indicating investment activity rather than trading. The Tribunal referred to the introduction of the security transaction tax and the distinction between long term and short term capital gains for tax purposes. The Tribunal also cited judicial precedents supporting the treatment of income from share transactions as capital gains rather than business income. The Tribunal concluded that there was no merit in treating the short term capital gain as business income and allowed the appeal.

In conclusion, the Tribunal ruled in favor of the assessee, holding that the short term capital gain should be treated as capital gains and not as business income. The decision was based on the assessee's investment activity, the principle of consistency in previous assessments, the intention to earn dividend income, and judicial precedents supporting the treatment of income from share transactions as capital gains. The Tribunal's decision highlighted the distinction between long term and short term capital gains for tax purposes and emphasized the importance of interpreting statutory provisions in line with legislative intent. The judgment provided a comprehensive analysis of the issues involved and clarified the treatment of short term capital gains in this particular case.