Income Tax Appellate Tribunal - Ahmedabad
Vora Stock Holding Pvt.Ltd.,, ... vs Department Of Income Tax on 15 March, 2012
1 ITA No.286/AHD/2009
Assessment Year 2005-06
.
IN THE INCOME TAX APPELLATE TRIBUNAL " A "BENCH, AHMEDABAD
(BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL CHATURVEDI, A.M.)
I.T.A. No. 286 /AHD/2009
(Assessment Year: 2005- 06 )
Income Tax Officer, Vs. Vora Stock Holding
Ward 8(4), Private Ltd.,
302 Aditya Building,
A-Wing, Ajanta Commercial
Bhind Sardar Patel Seva Samaj,
Centre, Ashram Road, Navrangpura,
Ahmedabad. Ahmedabad.
(Respondent)
(Appellant)
PAN: AAAcv 5046J
Appellant by : Shri RahulKumar,Sr.D.R.
Respondent by : Shri P. M. Mehta.
आदे श)/ORDER
(आदे Date of hearing : 15-3-2012 Date of Pronouncement : 13-4-2012 PER: SHRI ANIL CHATURVEDI,A.M. This appeal is filed by the Revenue against the order of CIT (A)- XIV, Ahmedabad dated 27-11-2008 for the Assessment Year 2005-06.
2. Revenue has taken two effective grounds as under:-
2 ITA No.286/AHD/2009Assessment Year 2005-06 .
"1. The Ld. CIT (A) has erred in law and on facts in deleting the disallowance of Rs.35,46,365/- in respect of the claim of the assessee on account of LTCG u/s. 10(38) treating the profit on sale of shares as business income.
2. The Ld. CIT(A) has erred in law and on facts in deleting the disallowance of deduction of Rs.31,02,962/- made u/s. 115JB of the I.T. Act in respect of the LTCG."
3. The assessee filed its return of income declaring total loss of Rs.5,49,506/- on 27-10-2005. The case was selected for scrutiny and the assessment was completed u/s 143(3) on 14-12-2007. The assessee is a Private Limited Company engaged in the business of trading of shares and investment. During the course of assessment proceedings A.O. observed that the assessee claimed exemption of Rs.35,45,915/- u/s. 10(38) with reference to sale of 2,50,000 shares of Energy Development Corporation. A.O. also observed that assessee had shown shares of Energy Development Corporation as stock in trade as on 31-3-2004 whereas in the balance sheet as on 31-3-2005, it had shown as investment. In response to the show cause notice, the assessee submitted its reply dated 3-12-2007 and stated as under:-
" Your Honour has raised the aspect of profit arising on the sale of 2,50,000 shares of Energy Development Co. Ltd., (EDCL). In this regard, first and foremost thing is that for this year the assessee's tax liability is being computed u/s. 115JB which is taxed on the basis of book profit. It is submitted that in the account books and in the Balance Sheet and profit and loss 3 ITA No.286/AHD/2009 Assessment Year 2005-06 .
account etc., prepared in accordance with the Company Law the profit is treated as on capital account. It is submitted that in the computation of tax liability for MAT u/s. 115JB there is no scope for changing the classification as envisaged in your above referred letter.
With prejudice, it is submitted that the aforesaid 2,50,000 shares were bought by the assessee in September, 1998 and in the intervening these many years there has not been any transaction of sale or purchase of equity shares of this company viz. EDCL. Right from the beginning the company intended to take them as long term investment addition held them accordingly. Unfortunately, through inadvertence, those share came to be categorized then as stock-in-trade inspite of the fact that they were intended to be treated as investment. Actually, on 31-3-2003 the Board of Directors had passed a resolution (copy enclosed) for changing the category of those shares from stock-in-trade to investment.
It was really unfortunate that, again through inadvertence, the effect of the aforesaid resolution of the Board of Directors which was passed on 31-3-2003 was not given in the account books for year ending 31-3-2004 in so far as the aforesaid shares in those account books and the balance sheet and profit and loss account continued to be shown as stock-in-trade as on 31- 3-2004.
Without prejudice, it is further submitted that, in law, there is no bar against such mistake being corrected if the facts and 4 ITA No.286/AHD/2009 Assessment Year 2005-06 .
circumstances so warrant. In this regard your Honour's attention is invited to the following decision of the Supreme Court which may be directed and noticed as follows:
Pullangode Rubber Produce Co. Ltd. v. State of Kerala & Anr. (1973) 91 ITR 18 (SC) Issue involved -Deduction under S. 5 of Kerala Agrl. I.T. Act - Expenditure on immature plant - Assessee himself capitalizing the expenditure on immature plants in his accounts - Still open to the assessee to show cause that the entries in accounts were incorrect - Sec. 37(1) of I.T.Act,1961."
If anything the assessee's case is stronger in so far as there is no mistake in the basic book entries as such but the assessee wants to correct the classification of the entry shown in the balance sheet as on 31-3-2004. Your Honour may kindly observe that in the Balance Sheet as on 31-3-2005 it is correctly shown as investment....."
Apart from above explanation, the assessee vide its letter dated 3-12-07 has also stated as under:
"........During the year, the assessee has sold the shares of Energy Development Co. Ltd., for Rs.60,35,915/- on 7-1-2005 and the profit of Rs.35,45,915/- derived by the assessee on sale of such shares has been claimed exempt u/s. 10(38) of the I.T. Act, by showing the gain as long term capital gain. It is submitted that upto 31-3-2004 those shares were held as stock-in-trade, but through over sight the shares were treated as converted into a capital asset on 1-4-2004 and shown as investment. This is an 5 ITA No.286/AHD/2009 Assessment Year 2005-06 .
inadvertent mistake committed by the staff. In fact, the gain on sale of shares is a business profit and the assessee is prepared to pay income tax thereon.
4. The A.O. did not agreed with the contentions of the Assessee and held the profit on sale of shares of Rs 35,46,365 as business income by holding as under:-
" The explanation offered by the assessee is considered but found not acceptable. The scrutiny of the case records revealed that the shares which have been sold during the year under consideration, had consistently been shown by the assessee as stock in trade. The assessee has wrongly shown the investment at Rs.37,00,000/- as on 31-3-2004 in the comparative figure in the balance sheet as on 31-3-2005. In fact upto F.Y. 2003-04 the assessee has consistently been showing the investment of Rs.12,00,000/- and Rs.25,00,000/- as stock in trade.
The assessee's argument that the shares in question were held as investment and also reflected as such in the balance sheet is not acceptable at all. The assessee-Company has shown the shares in stock in trade in the balance sheet as on 31- 3-2004. The income of the assessee from sale of shares is much more than the income derived by it as dividend. It is categorically established that real intention of the assessee company was to deal in shares and not to hold it as investment. Hence income from sale of shares is the business of the assessee and not capital gains as the purchase of shares was made solely with the intention of re-sale at a profit and not for long term capital gain, appreciation or earning dividend and interest. In view of these facts and in view of the ratio of the following decisions, the income of the assessee from sale of shares is held as business income and not capital gain.6 ITA No.286/AHD/2009
Assessment Year 2005-06 .
(a) G. Venkata Swami Naidu & Co. vs. CIT (1959) 35 ITR 594
(b) H. Mohmed & Co. v. CIT (1977) 107 ITR 637
(c) Sardar Indra Singh & Ltd. v. CIT (1953) 24 ITR 415 Further, in case of Commissioner of Income-tax, Central, Calcutta vs. Associated Industrial Development Co. Ltd. 83 ITR 586, the Supreme Court observed that "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 distinction between those shares which are its stock in trade and those which are held by way of investment". In the instant case, the shares had consistently been shown under the head stock in trade by the assessee, which shows the intention of the assessee that the shares had been kept for purchase and sale in the market with motive to earn profit. Hence, in view of above and in absence of any satisfactory explanation from the assessee, the assessee's claim to treat the transaction as long term capital gain is not accepted and the entire sale proceed of the shares held under stock in trade has been treated as the business and taxed accordingly. In view of this, the assessee's claim u/s. 10(38) in respect of the sale of shares as mentioned above, is rejected and the profit on sale of shares of Rs.35,46,365/- is treated as business income of the assessee and taxed accordingly.
Though the assessee has co-operated with the department for making the payment of tax under the MAT, the assessee's request for non-initiation of penalty proceedings u/s. 271(1)(c ) cannot be acceded to at this stage."
5. Aggrieved by the order of the A.O. the Assessee carried the matter before the CIT (A). CIT (A) allowed the appeal of the Assessee in by holding as under:-
7 ITA No.286/AHD/2009Assessment Year 2005-06 .
"4.3 I have carefully considered the facts of the case and the submissions of the A.R. of the appellant. From the long period of holding of shares and the fact there was no transaction earlier to the transactions in this year, it is clear that the intention of the appellant was to hold shares as investment. Hence the profit on sale of shares is held as long term capital gain. The second letter filed by the appellant on 3-12-2007 was a consequence to the proposal of the A.O. But the same has been argued out to be a conditional one on condition that no penalty should be initiated. The A.R. has strongly relied upon the first letter dated 3-12-2007 and has challenged the finding of the A.O. in the impugned appeal. In this regard the first detailed submission of the appellant along with Board resolution is given due importance and the same is considered. Further as the transactions are chargeable to Securities Transaction Tax, exemption is allowed u/s. 10(38) of the I.T. Act. Further as per clause (ii) of explanation to section 115JB of the I. T. Act, the said long term capital gain is to be reduced from book profit. Hence the ground No.1 and 2 are allowed."
6. Aggrieved with the order of the CIT (A), now the Revenue is in appeal before us.
7. The Ld. D.R. strongly argued that the assessee had been consistently showing the shares as its stock in trade since the date it were purchased in 1988. Therefore in the year of sale the A.O. was right in treating the profit on sale of shares as business income for the details and the reasons spelt out in the assessment order.
8. On the other hand the Ld. A.R. stated that the shares were purchased in the year 1988 and it was the intention of the Assessee to hold the same as investments for long term. Further, during the year 8 ITA No.286/AHD/2009 Assessment Year 2005-06 .
under review, only the shares of Energy Development Corporation Ltd was sold. Apart for these shares no other transaction of sale of shares has been undertaken by the Assessee. He further submitted that the accounting entries passed by the Assessee are not determinative of the nature and character of the expenditure or income and the total income chargeable to tax has to be computed in accordance with the provisions of the income tax Act. For this proposition he relied on the decision of Kedarnath Jute Manufacturing Co. Ltd Vs CIT 82 ITR 363 (S.C.). He also relied on the decisions Pullangode Rubber produce Co. Ltd Vs State of Kerala 91 ITR 18, decision of Delhi High Court in the case of CIT Vs Hitesh Estate Ltd 313 ITR 393, decision of Bombay High Court in the case of Gopal Purohit 336 ITR 287. He thus strongly supported the findings recorded by the CIT(A). He contended that the Ld. CIT (A) has allowed the appeal of the assessee after considering the entire factual and legal position in proper perspective.
9. We have heard the rival submissions put forth by the representatives of both the parties, perused the records produced before us. The factual and undisputed position that emerges is that the Assessee had investment in the equity shares of Energy Development Corporation Ltd. in 1998. There has been no transactions in the shares from the date of purchase till the date it was sold. It is also an undisputed fact that the assessee company had been showing the same as its stock in trade in all its audited balance sheets from 1998 (i.e. from the date of acquisition) onwards till 2005 9 ITA No.286/AHD/2009 Assessment Year 2005-06 .
i.e. for 8 years. As per the contentions of the Assessee, by a Board Resolution passed by the Directors of the Company on 31-3-2004, it was decided to regroup the shares from stock in trade to Investment. It is the assessee's submission that due to a bonafide error, the shares were classified as stock in trade for almost 8 years and with a view to rectify this mistake a resolution was passed by the Board of Directors on 31-3-2004. This argument of assessee does not convinces us for the reason that the assessee is a Corporate entity and its accounts are audited by professional Chartered Accountant and the accounts have been adopted by the shareholders and the mistake remained undetected by the Directors for such a long period. We have also perused the audited Balance sheets as on 31.3.2004 and 31.3.2005. The fact that the shares were reclassifed from stock in trade to investment due to an apparent mistake and pursuant to the Board Resolution passed by the Board of Directors, has not found a place either in the Director's Report, Auditor's Report nor in the notes to accounts for the period ending 31st March 2004 and 2005. Apart from the resolution, the assessee has not produced any other evidence to prove his contention that the shares were his investment and not stock in trade. The case-laws relied upon by the assessee are distinguishable on facts.
10. In view of the totality of the aforesaid facts we are of the view that the A.O. had correctly treated the profit on sale of shares as profit from business and not capital gains. We accordingly reverse the 10 ITA No.286/AHD/2009 Assessment Year 2005-06 .
order of CIT (A) and restore that of Assessing Officer. Accordingly Ground No 1 of the Revenue's appeal is allowed.
11. In the result, appeal of the Revenue is allowed.
Order pronounced in Open Court on 13 - 4 - 2012.
Sd/- Sd/-
(G.C.GUPTA) (A.NIL CHATURVEDI)
VICE PRESIDENT ACCOUNTANT MEMBER
Ahmedabad.
S.A.Patki.
Copy of the Order forwarded to:-
1. The Appellant.
2. The Respondent.
3. The CIT (Appeals)-XIV, Ahmedabad.
4. The CIT concerned.
5. The DR., ITAT, Ahmedabad.
6. Guard File.
By ORDER
Deputy/Asstt.Registrar
ITAT,Ahmedabad.
11 ITA No.286/AHD/2009
Assessment Year 2005-06
.
1.Date of dictation 15 - 3 -2012
2.Date on which the typed draft is placed before the Dictating 10 / 4 / 2012 Member................Other Member................
3.Date on which the approved draft comes to the Sr.P.S./P.S 11 - 4 -2012.
4.Date on which the fair order is placed before the Dictating Member for pronouncement 13 - 4 -2012
5.Date on which the fair order comes back to the Sr.P.S./P.S 13 - 4 -2012
6.Date on which the file goes to the Bench Clerk 13 - 4 -2012.
7.Date on which the file goes to the Head Clerk.............
8.The date on which the file goes to the Asstt. Registrar for signature on the order........................
9.Date of Despatch of the Order.................