2015 (8) TMI 1373 - AT - Income Tax

Revenue's Appeal Dismissed: Share Sale Surplus as Short Term Gains

The ITAT dismissed the Revenue's appeal, affirming the treatment of the surplus from share sales as short term capital gains. The decision was based on ... Surplus arising from sale of shares and securities - short term capital gains OR business income - Held that:- CIT(A) while deleting the addition and after placing reliance on the decision in the case of Ahmedabad Tribunal in the case of ACIT vs. Hipolin Ltd. [2009 (9) TMI 950 - ITAT AHMEDABAD has given a finding that the investment in shares were shown by the Assessee under the head investment and not stock in trade, Assessee had not incurred any interest expense for making the investment and the STT paid by the Assessee has not been claimed as deduction in the computation of income. He has further given a finding that Assessee during the year has not purchased any shares from the groups involved in IPO scam. Before us, Revenue has not controverted the findings of ld. CIT(A) nor has brought on record any contrary binding decision in its support. Thus no reason to interfere with the order of ld. CIT(A) and thus the ground of Revenue is dismissed. Issues:Treatment of surplus arising from the sale of shares as 'capital gains' or 'business income.'Analysis:The appeal was filed by the Revenue against the order of CIT(A)-I, Ahmedabad for A.Y. 2005-06. The Assessing Officer treated the profits on the sale of shares as 'business income' instead of 'short term capital gains' declared by the Assessee. The Assessee, registered as an 'Investment Company,' argued that the surplus arose from investments made with its own funds and not with borrowed funds. The Assessee's intention to invest was clear as it was authorized to invest in shares and securities. The ld. CIT(A) decided in favor of the Assessee, citing the Hipolin case and other judicial decisions supporting the Assessee's explanation. The ld. CIT(A) highlighted that the Assessee had not purchased shares from groups involved in an IPO scam and that the transactions were subject to STT. The ld. CIT(A) directed the surplus to be taxed as short term capital gains under section 111A.During the appeal before the ITAT, the Revenue contended that the Assessee was a dealer in shares and securities, not an investor, based on the volume and frequency of transactions. However, the ITAT upheld the ld. CIT(A)'s decision, emphasizing that the Assessee's investments were shown under the head of investment, not stock in trade. The ITAT noted that the Assessee had not incurred interest expenses for investments and had not purchased shares from groups involved in the IPO scam. The ITAT found no reason to interfere with the ld. CIT(A)'s order, as the Revenue failed to provide contrary binding decisions or challenge the findings.In conclusion, the ITAT dismissed the Revenue's appeal, affirming the treatment of the surplus arising from the sale of shares as short term capital gains. The decision was based on the Assessee's investment pattern, absence of interest expenses, compliance with STT, and lack of evidence supporting the Revenue's claim that the Assessee was a dealer in shares and securities.