Income Tax Appellate Tribunal - Delhi
Mahesh Chand Goyal (Huf), New Delhi vs Acit, New Delhi on 24 July, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI 'A' BENCH,
NEW DELHI
BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND
SHRI LALIET KUMAR, JUDICIAL MEMBER
ITA No.5038/DEL/2015
[Assessment Year: 2011-12]
Mahesh Chand Goyal (HUF), ACIT,
E-11/8, Vasant Vihar, Circle-38(1),
New Delhi-110057 E-2, Aayakar Bhawan,
New Delhi
PAN-AAAHM2116F
Appellant Respondent
Assessee by Shri K. Sampath &
Shri V. Raja Kumar
Revenue by Smt. Rinku Singh
Date of Hearing 22/07/2019
Date of Pronouncement 24/07/2019
ORDER
PER N.K. BILLAIYA, ACCOUNTANT MEMBER,
This appeal by the assessee is preferred against the order of the Ld. CIT(A)-20, dated 27/05/2015, pertaining to Assessment Year 2011-12. The first grievance of the assessee is that the Ld. CIT(A) erred in confirming the findings of the AO that the Short Term Capital Gain, returned by the assessee is business income of the assessee and the second grievance of the assessee is that the Ld. CIT(A) erred in confirming the findings of the AO that the transactions of Swastick International were speculation losses and therefore cannot be set of against normal income of the assessee. 2 ITA No.5038/Del/2015
2. The assessee is a HUF, engaged in the business of maintenance of real estate and Trading of copper goods for self and for others on commission basis. Return for the year was filed on 15/09/2011, declaring total income at Rs.2,46,74,220/-. The case was selected for scrutiny assessment. During the course of scrutiny assessment proceedings, the AO noticed that the assessee has shown Short Term Capital Gain of Rs.2,23,34,990/-. The details of Short Term Capital Gain are as under:-
3. The AO observed that on share purchase of Rs.1,53,88,694/-. The assessee has sold shares of Rs.3,77,23,684/-. The AO was convinced that the assessee is engaged in the business of trading of shares and therefore the income from capital gains is nothing but business income of the assessee. The AO further observed that sales of shares were made within a very short period and neither the volume nor the value of transaction is small. The assessee was asked to explain why profit on sale of shares shown as Short Term Capital Gain may not be assessed as income from business. The assessee filed a detailed reply referring to various judicial decisions and strongly 3 ITA No.5038/Del/2015 contending that the Short Term Capital Gains from sale of shares should be assessed as such.
4. After considering the submissions of the assessee and after referring to various judicial decisions, the AO concluded that the purchase and sale of securities is the usual trade or business of the assessee and accordingly treated as Short Term Capital Gain as business income of the assessee.
5. Proceeding further, the AO noticed that the assessee has claimed loss from Copper Trade at Rs.7,18,907/-. The assessee was asked to furnish the details and on perusing the details filed by the assessee, the AO found that Copper Cathode/rods/wires were purchased and sold on the same date without actual delivery. The AO further observed that the bills produced by the assessee, appears no sign of actual delivery at the godown. The AO in fact gave categorical finding that the assessee has neither furnished any details of godowns being maintained by the assessee. The AO was convinced with the transactions in commodity was settled otherwise then by the actual delivery for transfer of the commodities and therefore, the loss has to be treated as speculation loss.
6. Aggrieved by this, the assessee carried the matter before the Ld. CIT(A) but without any success.
7. Before us, the counsel for the assessee vehemently stated that the AO/Ld. CIT(A) grossly erred in not understanding the facts relating to the transactions in shares 4 ITA No.5038/Del/2015 and have erroneously held that Short Term Capital Gains as business income of the assessee.
8. It is the say of the counsel that intention of the assessee at the time of purchase of shares is only known to the assessee and the Revenue authorities cannot be make any presumption/assumption in treating the investment as business transactions. The counsel further stated that all the shares were purchased through banking channel and deliveries were duly taken by the assessee. The sale of the shares were also through banking channel and the transactions have been routed through D-mat account of the assessee. The counsel concluded by saying that the transactions of purchase and sale of shares have resulted in Short Term Capital Gain and should be assessed as such.
9. Per contra, the Ld. DR strongly supported the findings of the AO. It is the say of the Ld. DR that the volume of transactions in shares is much more in comparison to turnover of regular business of the assessee. The Ld. DR further pointed out that the shares were never held for more than two months which show s that they were never intended to be held for investment purpose. The DR further pointed out that the shares of different companies have been traded in short period. In support of her contention, the Ld. DR relied upon the decision of the Co-ordinate Bench in the case of Mahesh Chandra Agarwal vs ACIT, Circle-36(1), New Delhi, (93 taxmann.com 246). The Ld. DR further relied upon the decision of the Hon'ble Delhi High Court in the case of CIT vs D & M Components Ltd. 364 ITR 179(Del.) and further relied upon the decision of the Co- ordinate Bench in the case of Smt. Prem Jain vs ITO in ITA No.2572/Del/2016. 5 ITA No.5038/Del/2015
10. We have given a thoughtful consideration to the order of the authorities below. The details of Short Term Capital Gains are exhibited elsewhere from which it can be seen that the assessee has purchased shares of six companies on various dates and have sold them on various dates. Doing transaction in only six scrips show that the assessee has done one transaction in every 61 days. By any stretch of imagination, this cannot be considered to be that the assessee was engaged in the high frequency transactions. Further it is not the case of the AO that the assessee was churning the shares, buying and selling the same shares again and again. A trader may acquire a commodity in which he is dealing, for, his own purposes, and hold it apart from the stock- in-trade of his business. There is no presumption that such an .acquisition, even if it is an accretion to the stock-in-trade of the business, is an acquisition for the purpose of his business: in each case the question is one of intention to be gathered from the evidence of conduct and dealings by the acquirer with the commodity. In Associated Industrial Development (supra), the Supreme Court observed as follows:-
"....it was open to the assessee to contend that even on the assumption that it had become a dealer and was no longer an investor in shares the particular holdings which had been cleared and the sales of which had resulted in the profit in question had always been treated by it as an investment. It can hardly be disputed that there was no bar to a dealer investing in shares. But then the matter does not rest purely on the technical question of onus which undoubtedly is initially on the revenue to prove that a particular item of receipt is taxable. Whether a particular holding of shares is by way of investment or forms part of the stock-in-trade is a matter which is within the knowledge of the assessee who holds the shares and it should, in normal circumstances, be in a position to produce evidence from its records as to whether it has maintained any 6 ITA No.5038/Del/2015 distinction between those shares which are its stock-in-trade and those which are held by way of investment."
11. The Hon'ble Supreme Court in another case in P.M. Mohammed Meerakhan (P.M.) v/s CIT, [1969] 073 ITR 735 (SC), reiterated that it was not possible to evolve any single test or formula which could be applied in determining the transaction as adventure in nature of trade or not. The distinction between the two types of transaction is not always easy to make. Whether the transaction is of one kind or the other depends on the question whether the excess is an enhancement of the value by realizing the security or a gain in an operation of profit making. The assessee might have invested capital in shares with an intention to resale these if in future their sale brings in a higher price. Such an investment though motivated by a possibility of enhancement value, did not necessarily render the investment a transaction in the nature of trade.
12. The CBDT vide Circular No.6/2016 read as under:-
"Sub-section (14) of Section 2 of the Income-tax Act, 1961 ('Act') defines the term "capital asset" to include property of any kind held by an assessee, whether or not connected with his business or profession, but does not include any stock-in-trade or personal assets subject to certain exceptions. As regards shares and other securities, the same can be held either as capital assets or stock-in-trade/ trading assets or both. Determination of the character of a particular investment in shares or other securities, whether the same is in the nature of a capital asset or stock-in-trade, is essentially a fact-specific determination and has led to a lot of uncertainty and litigation in the past.
Over the years, the courts have laid down different parameters to distinguish the shares held as investments from the shares held as stock-in-trade. The Central Board of Direct Taxes ('CBDT') has also, through Instruction No. 1827, dated August 31, 1989 and Circular No. 4 of 2007 dated June 15, 2007, summarized the said principles for guidance of the field formations.
3. Disputes, however, continue to exist on the application of these principles to the facts of an individual case since the taxpayers find it difficult to prove the intention in acquiring such shares/securities. In this background, while recognizing that no universal principal in absolute terms can be laid down to decide the character of income from sale of shares and securities (i.e. whether the same is in the nature of 7 ITA No.5038/Del/2015 capital gain or business income), CBDT realizing that major part of shares/securities transactions takes place in respect of the listed ones and with a view to reduce litigation and uncertainty in the matter, in partial modification to the aforesaid Circulars, further instructs that the Assessing Officers in holding whether the surplus generated from sale of listed shares or other securities would be treated as Capital Gain or Business Income, shall take into account the following
a) Where the assessee itself, irrespective of the period of holding the listed shares and securities, opts to treat them as stock-in-trade, the income arising from transfer of such shares/securities would be treated as its business income.
b) In respect of listed shares and securities held for a period of more than 12 months immediately preceding the date of its transfer, if the assessee desires to treat the income arising from the transfer thereof as Capital Gain, the same shall not be put to dispute by the Assessing Officer. However, this stand, once taken by the assessee in a particular Assessment Year, shall remain applicable in subsequent Assessment Years also and the taxpayers shall not be allowed to adopt a different/contrary stand in this regard in subsequent years;
c) In all other cases, the nature of transaction (i.e. whether the same is in the nature of capital gain or business income) shall continue to be decided keeping in view the aforesaid Circulars issued by the CBDT.
4. It is however clarified that the above shall not apply to such transactions in shares/securities where the genuineness of the transaction is itself questionable such as bogus claims of long term capital/short term capital loss or any other sham transactions.
5. It is reiterated that the above principles have been formulated with the sole object of reducing the litigation and maintaining consistency in approach on the issue of treatment of income derived from transfer of shares and securities. All the relevant provisions of the Act shall continue to apply on the transactions involving transfer of shares and securities."
13. On perusal of the aforementioned circular of CBDT shows that even Board recognised the fact that where the assessee itself, irrespective of the period of holding the registered shares, treated them stock in trade the income arising from transfer of such shares would be treated as business income which means that where the assessee hold the shares as investment, the income arising therefrom is nothing but capital gains. There is no quarrel that the assessee has purchased the shares out of its own fund and no borrowed funds have been utilised by the assessee in purchasing the shares. The only fact for treating the Short Term Capital Gain as business income is that the period of holding is very less but then the Act itself provides that wherever the holding period is 8 ITA No.5038/Del/2015 less than 12 months, the gains from the sale of shares would be Short Term Capital Gain. The Act nowhere provides for the smallness of the period of holding. If it is less than 12 months, it will give rise to Short Term Capital Gains and if it is more than 12 months it will give rise to Long Term Capital Gains. There is also no dispute to the fact that all the transactions were delivery based transactions of listed companies routed through D-mat Account. No adverse finding is found in so far as these facts are concerned.
14. Considering the number of transactions, the number of shares with the fact that no borrowed fund was utilised. We are of the considered view that the gains arising out of sale of shares has to be treated as Short Term Capital Gains. Ground no.1 is accordingly allowed.
15. Coming to the ground number-2, though the counsel has pointed out that the assessee is also earning commission from transactions in copper but could not adduce any direct evidence in support of purchase and sale of copper/cathode/rods. No evidence has been furnished in respect of any godowns available with the assessee whether own or on hire. The bills referred to pertain to transactions on which the assessee has earned commission but no bills have been submitted to demonstrate that there was an actual delivery of goods, we are of the considered view that the copper/cathode/rods transactions that were purchased and sold on the same dates were clearly in the nature of speculation in the light of provisions of section 43(5) of the Act, which provides the speculative transactions means a transaction in which the contract for purchase or sale of any commodity including stocks in shares is periodically or ultimately settled otherwise 9 ITA No.5038/Del/2015 than by the actual delivery of transfer of the commodity or scrips. Considering the nature of transactions in light of the facts available on record, we do not find any error or infirmity in the findings of the Ld CIT(A). This ground of appeal is accordingly dismissed.
16. In the result, appeal filed by the assessee is partly allowed.
The order is pronounced in the open court on 24/07/2019
Sd/- Sd/-
[LALIET KUMAR] [N.K. BILLAIYA]
JUDICIAL MEMBER ACCOUNTANT MEMBER
Delhi; Dated: 24/07/2019.
f{x~{tÜ? fÜA P.S
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR
Asst. Registrar,
ITAT, New Delhi