Bombay High Court
Pr.Commissioner Of Income Tax-16 vs Amrita P Talwar on 8 April, 2019
Bench: Akil Kureshi, Sarang V. Kotwal
6. os itxa 81-84-90-120-17.doc
R.M. AMBERKAR
(Private Secretary)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
INCOME TAX APPEAL (IT) 81 OF 2017
WITH
INCOME TAX APPEAL NO. 84 OF 2017
INCOME TAX APPEAL NO. 90 OF 2017
INCOME TAX APPEAL NO. 120 OF 2017
Pr. Commissioner of Income Tax -16 .. Appellant
V/s.
Amrita P. Talwar .. Respondent
...................
Mr. Suresh Kumar for the Appellant
Mr. S.C. Tiwari a/w Ms. Rutuja Pawar for the Respondent
...................
CORAM : AKIL KURESHI &
SARANG V. KOTWAL, JJ.
DATE : APRIL 8, 2019.
P.C.:
1. Revenue has filed these appeals to challenge a common judgment of the Income Tax Appellate Tribunal ("the Tribunal" for short).
2. Following question is presented for our consideration:-
"Whether on the facts and the circumstances of the case and as per law, the Tribunal has erred in directing the Assessing Officer to treat the income from transaction of shares which were held by the assessee for less than one year as short term capital gain instead of business income as was held by the Assessing Officer and was confirmed by CIT(A)?"
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6. os itxa 81-84-90-120-17.doc
3. Respondent assessee is an individual. The Department contends that she was engaged in business of buying and selling shares and therefore, the receipt arising out of such activity should be taxed as business income. The assessee has claimed that she was an investor in shares and therefore, the receipt was in the nature of capital gain.
4. The CIT(A) had given partial relief to the assessee holding that in relation to all the shares which were sold after holding for a period of 12 months, the same would give rise to capital gain in the hands of the assessee. For the rest, the same would be treated as business profit. In further appeal by the Department as well as by the assessee, the Tribunal rendered the impugned judgment. The Tribunal allowed the assessee's appeals and dismissed the Revenue's appeals. Thereupon the present appeals have been filed by the Revenue questioning only the decision of the Tribunal in so far as the assesse's appeals have been allowed.
5. We have heard the learned counsel for the parties and perused the documents on record. The Tribunal while giving 2 of 4 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 10/04/2019 00:51:31 :::
6. os itxa 81-84-90-120-17.doc full relief to the assessee noted the relevant facts such as the fact the assessee was a medical practitioner by profession, she had used interest free funds obtained from her father for purchasing shares. She had not made investment from any borrowed funds. She had shown the shares as investment in the balance sheet. In case of fall in the value of shares, the same is not claimed as a business loss. The profit and loss arising out of the intra day transactions was declared as speculation profit. In rest of the cases, the assessee had taken delivery of all the shares.
6. The question whether the particular assessee is in the business of buying and selling shares or an investor, must necessarily depend on range of facts and circumstances. No single factor would decide the answer to the said question. In the present case, the Tribunal has taken into account all relevant facts. The significant factors as noted above are that the assessee was a professional, that no borrowed funds were used for purchase of shares, no interest inter alia was paid, the shares were shown in the balance sheet as investment and in all cases other than the intra day 3 of 4 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 10/04/2019 00:51:31 :::
6. os itxa 81-84-90-120-17.doc transactions, delivery of the shares was taken.
7. We do not find that the Tribunal has committed any error in holding that the assessee was not in the business of buying and selling shares. Mere fact that the frequency of buying and selling shares may be higher itself would not be a determined factor. In fact, the Tribunal noticed that the assessee had rarely indulged in repeat buying and selling the same script.
8. In the result, no question of law arises. Income Tax Appeals are dismissed.
[ SARANG V. KOTWAL, J. ] [ AKIL KURESHI, J ] 4 of 4 ::: Uploaded on - 09/04/2019 ::: Downloaded on - 10/04/2019 00:51:31 :::