2017 (1) TMI 1246 - AT - Income Tax

Profit earned on sale of shares - short term capital gain OR business income - Held that - We are of the opinion that conduct of the assessee reflect the intention of business activity and, thus, we, accordingly, hold the shortterm capital gain declared by the assessee amounting to ₹ 35,14,66,127/- as the profit and gains from business activity of purchase and sale of shares. Accordingly, the ground of the appeal of the Revenue is allowed.

Summary

Issues Involved:
1. Classification of profit on sale of shares as short term capital gain or business income.
2. Disallowance under section 14A and initiation of penalty proceedings under section 271(1)(c).

Issue 1: Classification of profit on sale of shares
The case involved cross-appeals by the Revenue and the assessee against the order of the Commissioner of Income-tax (Appeals) for the assessment year 2008-09. The Revenue questioned the characterization of a profit of ?35,14,66,127 earned by the assessee on the sale of shares as short term capital gain instead of business income. The Revenue contended that the frequency and volume of transactions, coupled with borrowed funds for share purchase and lack of separate accounts for investments, indicated a business activity. The Assessing Officer had earlier held the activity as business, leading to disallowance under section 14A. The Commissioner of Income Tax (Appeals) had partially ruled in favor of the assessee. The Tribunal, after examining the facts and the assessee's past treatment of similar activities as business income, concluded that the intention behind the transactions reflected a business activity. Consequently, the profit was classified as gains from the business of buying and selling shares, allowing the Revenue's appeal.

Issue 2: Disallowance under section 14A and penalty proceedings under section 271(1)(c)
The assessee's appeal raised concerns regarding the disallowance under section 14A and the initiation of penalty proceedings under section 271(1)(c). The Commissioner of Income-tax (Appeals) upheld the disallowance of administrative expenses amounting to ?7,60,000 under Rule 8D(2)(iii) due to the earning of exempt income. The Tribunal supported this decision, emphasizing that expenses related to earning exempt income are inherent in business expenses. As for the penalty proceedings, the Tribunal deemed the ground premature as the penalty had not been levied yet, providing the assessee an opportunity to contest it during the penalty imposition. Consequently, the Tribunal rejected the assessee's appeal on both the disallowance and penalty initiation, affirming the Commissioner's order.

In conclusion, the Tribunal allowed the Revenue's appeal regarding the classification of profit on the sale of shares, considering it as business income. Additionally, the Tribunal upheld the disallowance under section 14A and dismissed the appeal on penalty proceedings initiated under section 271(1)(c).