Income Tax Appellate Tribunal - Pune
Smt. Ruchi Amitkumar Patni,, vs Department Of Income Tax on 30 September, 2016
आयकर अपील य अ धकरण, पुणे यायपीठ "ए" पुणे म
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "A", PUNE
ी आर. के. पांडा, लेखा सद य एवं
ी वकास अव थी, या"यक सद य के सम#
BEFORE SHRI R.K. PANDA, AM
AND SHRI VIKAS AWASTHY, JM
आयकर अपील सं. / ITA No.1639/PN/2014
"नधा%रण वष% / Assessment Year : 2007-08
ITO, Ward-2(3), Pune .......... अपीलाथ / Appellant
बनाम v/s
Smt. Ruchi Amitkumar Patni,
S.No.1A, Irani Market
Compound, Yerawada,
Pune - 411006 .......... यथ /Respondent
PAN : AARPP6091R
अपीलाथ क ओर से / Appellant by : Shri Anil Kumar Chaware
यथ क ओर से / Respondent by : Shri C.H. Naniwadekar
सन
ु वाई क तार ख / घोषणा क तार ख /
Date of Hearing :27.09.2016 Date of Pronouncement:30.09.2016
आदे श / ORDER
PER R.K.PANDA, AM :
This appeal filed by the Revenue is directed against the order dated 30-04-2014 of the CIT(A)-II, Pune relating to Assessment Year 2007-08.
2. This is the second round of litigation before the Tribunal. Facts of the case, in brief, are that the assessee is an individual and derives income from house property, capital gain and income from other sources. She had filed her return of income declaring total income at Rs.1,43,35,060/- after claiming capital loss of Rs.41,16,326/- on sale of shares which were converted into investment from stock in trade as on 31-03-2006. The AO completed 2 ITA No.1693/PN/2014 the assessment u/s.143(3) allowing the said loss as business loss in view of the stand taken by the revenue in the earlier year that the sale transactions through PMS are business transaction. Subsequently, the AO noted that in the case of non-corporate assessee in whose case Explanation to section 73 is not applicable, loss from derivative/non derivative transactions prior to the new amendment to section 43(5)(d) were speculative in nature and after amendment w.e.f. 25-01-2006 the speculative loss is not to be set off against any head of income. Since in the assessee's case loss was allowed as business loss the AO reopened the assessment after seeking approval from Addl.CIT and notice u/s.148 was issued after recording the reasons for reopening. The AO completed the assessment u/s.143(3) r.w.s.147 on 25-03-2013 wherein he held that the loss is speculative in nature and therefore cannot be set off against any head of income in view of the new amendment to section 43(5)(d) of the Act. He accordingly withdrew the loss of Rs.41,16,326/- which was allowed in the earlier assessment order passed on 16-11-2009.
3. In appeal the Ld.CIT(A) set aside the order of the AO in treating the capital loss of Rs.41,16,326/- in respect of sale of shares converted from stock in trade to investment as speculative loss. The relevant observation of the CIT(A) at Para 3.4 and 3.5 read as under :
"3.4 I have considered the submission made by the appellant and perused material on record. The issue raised by the appellant relates to the treatment of the capital loss of Rs. 41,16,326/- in respect of sale of shares which were converted from stock in trade to investment as speculative loss. The material on record clearly indicate that the aforesaid issue of treatment of gain/loss on sale of shares converted into investment on the closure of proprietary business was earlier also the subject matter of appeal. In the original assessment proceedings it is noticed that the issue regarding the nature of loss in respect of shares converted from stock in trade of erstwhile proprietary business of the 3 ITA No.1693/PN/2014 appellant after closure to investment was dealt with by the Assessing Officer in earlier years and it was treated as business loss as against capital loss claimed by the appellant. The Assessing Officer in the assessment order has clearly mentioned that the shares were lying in the demat account, meaning thereby that the shares were lying in the demat account forwarded from earlier years and hence were held only after taking delivery of the same and, therefore, the Assessing Officer treated the loss at the time of assessment as business loss and not as a speculative loss. Moreover, on going through the break-up of the loss of Rs. 41,16,326/- it is seen that it comprises of long term capital loss of Rs.32,74,631/- and short term capital loss of Rs. 8,41,689/- meaning thereby that for the losses in the long term loss is in respect of shares held for more than one year and short term loss are In respect of shares held for less than a year. The chart of capital loss as submitted by the appellant indicates to the fact that the delivery of all the shares were taken and do not indicate any material or the basis to indicate the fact that the loss incurred by the appellant was a speculative loss. The appellant had not accepted the change of head of income by the Assessing Officer in respect of shares held as investment after the conversion of stock in trade into investment on closure of trading business in the earlier year and had contested the same during the appellate proceedings before the CIT(A)-II Pune. In the appellate order No.PN/CIT(A)-IIIAddI.CIT R-2, Pn/192/09-10 dated 16-03-2011 while allowing the appeal of the appellant it was held as under:
"5.2 I have considered the submissions and the decision of the ITA T in the case of ACIT Vs. Bright Star Investment (P) Ltd., (2009) 17 DTR 399 (Mum.). The appellant has cited the head notes for the ratio of this decision, which is reproduced in the above submission. In this decision, the ITA T had observed that the receipts from sale of shares after conversion from stock-in-
trade to investment were rightly offered by the assessee as long term capital gains, i.e.; the difference between the sale price of the shares and the cost of acquisition of shares, which is the book value on the date of conversion with indexation from the date of conversion, there being no provision like s.45(2) to deal with such a situation.
5.3 Moreover, it is also informed that the appellant had duly given the notice of discontinuation of business vide letter dtd. 7.4.2006 submitted with the Assessing Officer on 12.4.2006 i.e. within the prescribed period of time as mentioned in section 176(3) of the I. T. Act, 1961. Considering the facts and circumstances of the case and the legal position enunciated by the above referred to decision of the Mumbai tribunal, the appellant's claim is held to be tenable in law. Accordingly ground No. 3 (a) & (b) are held to be allowed. Since ground No.3(a) & (b) are allowed, there is no need to adjudicate on ground No.3(c) which is on a without prejudice basis."
3.4.1 The appeal filed by the department on the same issue before the ITAT and the ground of appeal taken was as under :
"9. Ground of appeal No.13 by the revenue reads as under :4 ITA No.1693/PN/2014
"13. The learned Commissioner of Income Tax (Appeals) grossly erred in failing to appreciate that mere changing the classification of shares held as stock-in-trade in earlier years as investments and passing book entries to that effect cannot be treated as closure of business when the said shares were still held in the same D-MAT account meant for share trading business, and, therefore, the loss incurred on the sale of such shares has to be treated as business loss."
The ITAT in its order dated 28-06-2012 allowed the ground of appeal in favor of the appellant and held as under:
"13. After hearing both the sides we do not find any infirmity in the order of the learned CIT(A). The finding given by the learned CIT(A) that assessee has duly given the notice of discontinuation of business vide letter dated 07.11.2006 filed before the AO on 12.04.2006 which is within the prescribed period of time as per section 176(3) of the Income Tax Act could not be controverted by the learned DR. Further it has been categorically submitted by the assessee before the lower authorities that he has discontinued the share trading business and the closing stock in shares as on 31.03.2006 has been transferred to his capital account at cost and the same also remains uncontroverted. It has been held by the Mumbai Bench of the Tribunal in the case of ACIT Vs Bright Star Investment Pvt. Ltd. (supra) that receipt from sale of shares after conversion from stock in trade to investment has to be held as capital gain in absence of provision like section 45(2). Respectfully following the above decision of the Mumbai Bench of the Tribunal in the case of Bright Star Investment Pvt. Ltd. (supra) and in view of the detailed order passed by the Ld. CIT(A) on this issue we find no infirmity in the same. Accordingly, the same is upheld. The ground raised by the revenue is dismissed. "
Thus, in the appellate proceedings the CIT(A) and the ITAT confirmed the treatment given by the appellant in the computation of income i.e. loss is assessable under the head 'capital gains' and not under the head "income from business".
3.5 In view of the above facts and ratio of judicial decisions the grounds of appeal No.2 raised by the appellant are allowed."
4. So far as the ground relating to validity of reassessment proceedings are concerned he held that since the assessee succeeds on merit the challenge to the validity of reassessment proceedings become academic in nature and therefore he did not adjudicate the same.
5ITA No.1693/PN/2014
5. Aggrieved with such order of the CIT(A) the Revenue is in appeal before us with the following grounds :
"1. The learned Commissioner of Income-tax (Appeals) erred in failing to appreciate that the losses from derivatives / non derivatives transaction prior to the amendment to section 43(5)(d) were speculative in nature and after the amendment w.e.f. 25/01/2006, the speculative loss is not to be set off against any head of income.
2. The learned Commissioner of Income-tax (Appeals) erred in not appreciating that capital loss of Rs. 41,16,326/- claimed by the assessee was from trading in shares and the assessee had carried out transactions in high volumes, frequency and in an organized manner which clearly established that the impugned activity was in the nature of "business"
and not "investment" as claimed by the assessee and therefore, such loss had been rightly assessed under the head 'Profits and Gains of Business or Profession'.
3. The learned Commissioner of Income-tax (Appeals) erred in failing to appreciate that mere changing the classification of shares held as stock-in-trade in earlier years as investments and passing book entries to that effect cannot be treated as closure of business when the said shares were still held in the same D-MAT account meant for share trading business, and, therefore, the loss incurred on the sale of such shares has to be treated as business loss.
4. The appellant craves leave to add, alter or amend any or all the grounds of appeal."
6. The Ld. Counsel for the assessee at the outset drew the attention of the Bench to the order of the Tribunal in the case of DCIT Vs. Mrs. Sadhana A. Patni and bunch of other appeals vide ITA Nos. 799 to 804/PN/2011 order dated 28-06-2012 for A.Y. 2007-08. Referring to page 8 para 9 of the above order the Ld. Counsel for the assessee drew the attention of the Bench to the Ground of appeal No.13 raised by the Revenue which reads as under :
"13. The learned Commissioner of Income Tax (Appeals) grossly erred in failing to appreciate that mere changing the classification of shares held as stock-in-trade in earlier years as investments and passing book entries to that effect cannot be treated as closure of business when the said shares were still held in the same D-MAT account meant for share trading business, and, therefore, the loss incurred on the sale of such shares has to be treated as business loss".6 ITA No.1693/PN/2014
7. He submitted that the Tribunal at Para 13 of the order has held that receipt from sale of shares after conversion from stock in trade to investment has to be held as capital gain in absence of provision like section 45(2). Accordingly, the order of the CIT(A) was upheld and the grounds raised by the Revenue on this issue were dismissed. Since the Ld.CIT(A) while deciding the appeal has followed the decision of the Tribunal in the case of other family members and the Ground of appeal No.1 & 3 by the revenue relates the issue which has already been decided by the Tribunal against the revenue, therefore, this being a covered matter the grounds raised by the revenue should be dismissed.
8. The Ld. Departmental Representative on the other hand fairly conceded that the issue stands decided against the decision of the Tribunal in the case of other family members.
9. We have considered the rival arguments made by both the sides, perused the orders of the AO and CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find in the instant case the assessee is an individual and filed her return of income disclosing total income of Rs.1,43,35,060/- after claiming capital loss of Rs.41,16,326/- on sale of shares which were converted into investment from stock in trade as on 31-03-2006. In the original assessment proceedings the AO had accepted the said loss under the head "business loss" in view of the stand taken by the revenue in assessee's case for the earlier years. Subsequently, the AO reopened the assessment on the ground that assessee is a non-corporate assessee and in her case the provision of Explanation to section 73 is not applicable and 7 ITA No.1693/PN/2014 therefore the loss from derivative/non-derivative transactions prior to the new amendment to section 43(5)(d) were speculative in nature and after amendments w.e.f. 25-01-2006 the speculative loss is not be set off against any head of income. He therefore in the assessment completed u/s.143(3)/147 held that the loss is speculative in nature and therefore cannot be set off against any head of income in view of new amendment to section 43(5)(d) of the Act. We find in appeal the Ld.CIT(A) following the decision of the Tribunal in the case of various family members held that the loss is assessable under the head "capital gains" and not under the head "income from business". The relevant observation of the CIT(A) has already been reproduced in the preceding paragraphs. Since the CIT(A) while deciding the issue has followed the decision of the Tribunal in the case of various family members and since the Ld. Departmental Representative could not bring any distinguishable features so as to take a contrary view than the view taken by the Ld.CIT(A), therefore, we do not find any infirmity in the order of the CIT(A) who has allowed the appeal of the assessee by following the decision of the Tribunal in the case of other family members. Accordingly, the order of the CIT(A) is upheld and the grounds raised by the revenue are dismissed.
10. In the result, the appeal filed by the revenue is dismissed.
Order pronounced in the open court on 30-09-2016 Sd/- Sd/-
(VIKAS AWASTHY) (R.K. PANDA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
पण
ु े Pune; "दनांक Dated : 30 September, 2016.
th
सतीश
8
ITA No.1693/PN/2014
आदे श क( )"त+ल प अ,े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent
3. The CIT(A)-II, Pune
4. The CIT- II, Pune $वभागीय 'त'न(ध, आयकर अपील य अ(धकरण, "ए" पण ु े / DR,
5. ITAT, "A" Pune;
5. गाड+ फाईल / Guard file.
आदे शानस ु ार/ BY ORDER, //स या$पत 'त //True Copy // व-र.ठ 'नजी स(चव / Sr. Private Secretary आयकर अपील य अ(धकरण, पण ु े / ITAT, Pune