2017 (1) TMI 776 - AT - Income Tax

HUF's Income from Share Transactions Held as Capital Gains, Not Business Income Under Tax Law

Surya Prakash Toshniwal HUF, C/o. Narendra Goyal and Co. Versus Income Tax Officer, Ward-41 (3), 3, Kolkata

Surya Prakash Toshniwal HUF, C/o. Narendra Goyal and Co. Versus Income Tax Officer, Ward-41 (3), 3, Kolkata - TMI Issues Involved:1. Whether the purchase-sale of securities should be treated as business profit or capital gains.2. Whether the addition of Rs. 14,97,500/- should be treated as income from undisclosed sources.3. Whether the dividend income of Rs. 24,983/- from UTI Master Value Fund should be treated as income from undisclosed sources.Issue-wise Detailed Analysis:1. Treatment of Purchase-Sale of Securities:The assessee, a Hindu Undivided Family (HUF), declared income from trading in shares and securities under 'capital gains.' However, the Assessing Officer (AO) treated this income as 'business income' due to negligible dividend income, high frequency and magnitude of transactions, and the manner of recording transactions in the books. The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the AO's decision, stating that the AO treated the income as from undisclosed sources under Section 68, not as business income. The Tribunal found that the CIT(A) misunderstood the facts, as the AO's order did not treat the income as from undisclosed sources. The Tribunal held that the AO cannot decide the business decisions of the assessee and that the intention of the assessee should be considered. Citing precedents, the Tribunal concluded that the income should be treated as capital gains, not business income, and allowed the assessee's appeal on this ground.2. Addition of Rs. 14,97,500/- as Income from Undisclosed Sources:The assessee purchased shares of M/s Rohon Financial and Securities Ltd. (RFSL) and later sold them to M/s Ahilya Commercial Pvt. Ltd. (ACPL), resulting in a capital gain. The AO treated the transaction as bogus and the income as from undisclosed sources, citing the sharp rise in share price, SEBI's directive against ACPL, and lack of financial statements from ACPL. The CIT(A) upheld the AO's decision, noting the involvement of the Karta of the HUF in both buying and selling and the failure to establish the identity and creditworthiness of ACPL. The Tribunal found that the AO did not provide concrete evidence to disallow the long-term capital gain and failed to issue necessary notices to RFSL and ACPL. The Tribunal held that the assessee cannot be penalized for ACPL's non-compliance and reversed the lower authorities' decisions, allowing the assessee's appeal on this ground.3. Dividend Income of Rs. 24,983/- from UTI Master Value Fund:The AO disallowed the dividend income, stating that the investment was not reflected in the previous year's balance sheet and that such a high dividend could not be earned in a short span. The CIT(A) upheld the AO's decision, doubting the authenticity of the investment and the dividend receipt. The Tribunal found that the investment and dividend receipt were evident from the account and bank statements. The Tribunal noted that the dividend was credited through an account payee cheque, and the Revenue did not contradict this evidence. Consequently, the Tribunal reversed the CIT(A)'s order and allowed the assessee's appeal on this ground.Conclusion:The Tribunal allowed the assessee's appeal on all grounds, treating the income from the sale of securities as capital gains, rejecting the addition of Rs. 14,97,500/- as income from undisclosed sources, and accepting the dividend income of Rs. 24,983/- from UTI Master Value Fund. The order was pronounced in the open court on 11/01/2017.