ACIT, CIR-34, KOLKATA, Kolkata V. M/s Everest Finance & Investment Co., Kolkata

ITA 1260/KOL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0865 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 02-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SOUMYAJIT DASGUPTA
• Keywords: Business income; Rule of consistency; Transactions in derivatives; Additional evidence
• Section: 143(3); 43(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH, AM & SHRI S.S. VISWANETHRA RAVI, JM] I.T.A NO. 1260/KOL/20 14 ASSESSMENT YEAR : 2010-1 1 ACIT, CIRCLE-34, KOLKATA -VS- M/S EVERE ST FINANCE & INVESTMENT CO. [PAN: AABFE 7233 Q] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SOUMYAJIT DAS GUPTA, ADDL. CIT FOR THE RESPONDENT : SHRI S.S. GUPTA, FCA SHRI ARVIND AGARWAL, ADVOCATE DATE OF HEARING : 13.11.2017 DATE OF PRONOUNCEMENT : 01.12.2017 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE REVENUE ARISES OUT OF THE OR DER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-XX, KOLKATA [IN SHORT THE LD CI T(A)] IN APPEAL NO.03/CIT(A)- XX/RANGE-34/2013-14/KOL DATED 04.02.2014 AGAINST T HE ORDER PASSED BY THE ACIT, CIRCLE-34, KOLKATA [ IN SHORT THE LD AO] UNDER SECT ION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 18.03.2013 FOR THE ASSESSMENT YEAR 2010-11. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS A S TO WHETHER THE LD CITA WAS JUSTIFIED IN GIVING RELIEF TO THE ASSESSEE WITH RESPECT TO TH E TREATMENT OF SHORT TERM CAPITAL GAINS (STCG) OF RS 2,34,61,815/- IN THE FACTS AND CIRCUMS TANCES OF THE CASE. THE INTERCONNECTED ISSUE IN THIS REGARD IS AS TO WHETHE R THE LD CITA WAS JUSTIFIED IN GIVING 2 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 2 RELIEF TO THE ASSESSEE WITH RESPECT TO THE TREATMEN T OF STCG OF RS 49,75,689/- TREATED BY THE LD AO AS SPECULATION PROFIT, IN THE FACTS AND C IRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS APPEAL IS THAT THE ASSES SEE IS A PARTNERSHIP FIRM ENGAGED IN INVESTMENT IN SHARES AND SECURITIES AND FINANCING. FOR THE ASST YEAR 2010-11, THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING NIL I NCOME AFTER SETTING OFF OF BROUGHT FORWARD LOSS OF RS 47,42,883/- AND BROUGHT FORWARD LOSS UNDER THE HEAD CAPITAL GAINS OF RS 11,16,89,877/- . THE ASSESSEE ALSO CARRIED FORWA RD SHORT TERM CAPITAL LOSS OF RS 9,42,76,136/- TO SUBSEQUENT YEARS. THE LD AO OBSE RVED THAT THE ASSESSEE REPORTED SHORT TERM CAPITAL GAINS IN RESPECT OF THE FOLLOWING SCRI PS AMOUNTING TO RS 10,71,05,598.32 AS UNDER:- SL. NO. NAME SALE VALUE PURCHASE VALUE PROFIT/LOSS PERIOD O F HOLDING 1 ADANI ENTERPRISES RS. 2,96,69,262.30 RS. 2,20,28,227.12 RS.76,41,035.18 22-24 DAYS 2 ADHUNIK METALS LTD. (SOLD BEFORE DELIVERY) RS. 36,73,102.77 RS. 34,10,161.69 RS. 2,62,941.08 5 DAYS 3 BEML RS. 19,964.000 RS. 1,03,10,100 RS. 96,53,900 19-69 DAYS 4 LANCO INFRATECH (SOLD BEFORE DELIVERY) RS. 3,25,55,228 RS. 2,78,42,280 RS. 47,12,748 2 DAY S 5 MERCATOR LINES LTD. RS. 3,62,29,540.60 RS. 2,28,62,500 RS. 1,33,67,040 19 DAYS 6 ONMOBILE GLOBAL LTD. RS. 5,92,23,809.64 RS. 3,57,18,000.00 RS. 2,35,05,809.64 259-323 DAYS 7 PATNI COMPUTER SYSTEMS LTD. RS. 1,63,36,089.42 RS. 1,38,82,350 RS. 24,53,739.42 10 DAYS 8 SUPREME INFRASTRUCTURE LTD. RS. 4,90,44,729.26 RS. 10087440.00 RS. 3,89,57,289.26 115-341 DAYS 9 VIMTA LABORATORIES RS. 1,57,95,817.62 RS. 92,44,722.48 RS. 65,51,095.14 265-363 DAYS TOTAL RS. 26,24,91,579.61 RS. 15,53,85,981.29 RS. 10,71,05,598.32 THE LD AO OBSERVED THAT THE ASSESSEE REPORTED LONG TERM CAPITAL GAINS (LTCG) IN RESPECT OF THE FOLLOWING SCRIPS AMOUNTING TO RS 5,1 9,19,913/- AS UNDER:- 3 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 3 SL NO. NAME SALE VALUE PURCHASE VALUE PROFIT/LOSS 1 AUTOMOBILE CORPN OF GOA LTD. RS. 31,88,670 RS. 39 ,45,391 RS. 7,56,721.00 2 LUPIN LTD. RS. 11,07,59,500 RS. 4,04,60,240 RS.7, 02,99,260 3 SHANTI GEARS LTD RS. 1,80,65,244 RS. 2,11,40,635 RS.-30,75,391 4 STONE INDIA LTD. RS. 51,14,448 RS. 2,03,53,218 RS . 15,23,877 5 VIMTA LABORATORIES RS. 23,72,069 RS. 16,80,534 R S. 6,91,535 TOTAL RS. 13,94,99,941 RS. 8,75,80,018 RS. 5,19,19, 913 3.1. THE LD AO OBSERVED FROM THE HOLDING PERIOD OF SHARES THAT ASSESSEE HAD INDULGED IN TRADING OF SHARES; INDULGED IN SPECULATIVE TRANSACT IONS WHERE DELIVERY HAD NOT TAKEN PLACE AND TREATED THE REMAINING AS STCG FROM THE TA BLE OF WORKINGS OF STCG HEREINABOVE. THE LD AO HOWEVER ACCEPTED THE LTCG REPORTED BY THE ASSESSEE. IN EFFECT, THE LD AO CONFERRED AN ADDITIONAL STATUS OF THE ASSESSEE AS A TRADER IN SHARES, SPECULATOR IN SHARES AND AN INVESTOR IN SHARES, AS AGAINST THE SINGLE CLAIM OF THE ASSESSEE BEING AN INVESTOR IN SHARES ONLY. THE DIFFERENTIA L TREATMENT GIVEN BY THE LD AO IN RESPECT OF DIFFERENT SCRIPS IS AS UNDER :- A. GAINS FROM SHARES TREATED AS SPECULATIVE GAINS 1. ADHUNIK METALS LTD GAIN DERIVED OF RS 2,62,941 /- (HOLDING PERIOD 5 DAYS) 2. LANCO INFRATECH LTD GAIN DERIVED OF RS 47,12,7 48/- (HOLDING PERIOD 2 DAYS) ACCORDING TO LD AO, THE ASSESSEE HAD SOLD THE ABOVE MENTIONED SHARES EVEN BEFORE TAKING DELIVERY OF THE SAME AND HENCE THE TOTAL GAI NS DERIVED THEREON AMOUNTING TO RS 49,75,689/- WOULD HAVE TO BE TREATED AS SPECULATIVE PROFITS TAXABLE SEPARATELY UNDER THE HEAD SPECULATION BUSINESS IN TERMS OF SECTION 43 (5) OF THE ACT. B. GAINS FROM SHARES TREATED AS BUSINESS INCOME 1. ADANI ENTERPRISES LTD GAIN DERIVED OF RS 76,41 ,035/- (HOLDING PERIOD 22-24 DAYS) 4 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 4 2. MERCATOR LINES LTD GAIN DERIVED OF RS 1,33,67, 040/- (HOLDING PERIOD 19 DAYS) 3. PATNI COMPUTER SYSTEMS LTD GAIN DERIVED OF RS 24,53,739/- (HODLING PERIOD 10 DAYS) ACCORDING TO LD AO, THE ASSESSEE HAD SOLD THE ABOVE MENTIONED SHARES WITHIN SHORT SPAN OF TIME (I.E HOLDING PERIOD OF THESE SHARES ARE VER Y LESS) AND HENCE THE TOTAL GAINS DERIVED THEREON AMOUNTING TO RS 2,34,61,815/- WOULD HAVE TO BE TREATED AS BUSINESS INCOME TAXABLE SEPARATELY. C. GAINS FROM SHARES TREATED AS SHORT TERM CAPITAL GAINS 1. BHARAT EARTH MOVERS LTD GAIN DERIVED OF RS 96,5 3,900/- (HOLDING PERIOD 19-69 DAYS) 2. ONMOBILE GLOBAL LTD GAIN DERIVED OF RS 2,35,05 ,810/- (HOLDING PERIOD 259-323 DAYS) 3. SUPREME INFRASTRUCTURE LTD GAIN DERIVED OF RS 3,89,57,289/- (HOLDING PERIOD 115- 341 DAYS) 4. VIMTA LABORATORIES LTD GAIN DERIVED OF RS 65,5 1,095/- (HOLDING PERIOD 265-363 DAYS) ACCORDING TO LD AO, THE ASSESSEE HAD SOLD THE ABOVE MENTIONED SHARES AFTER HOLDING FOR A LONG SPAN OF TIME (I.E HOLDING PERIOD OF THESE SH ARES ARE HIGH) AND HENCE THE TOTAL GAINS DERIVED THEREON WOULD HAVE TO BE TREATED AS SHORT T ERM CAPITAL GAINS (STCG) WHICH WAS RIGHTLY DONE BY THE ASSESSEE AND HENCE NO INTERFERE NCE IS CALLED FOR. 3.2. IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUED TO THE ABOVE DIFFERENTIAL TREATMENT PROPOSED BY THE LD AO, THE ASSESSEE STATED THAT THE ASSESSEE FIRM IS INVOLVED ONLY IN INVESTMENT IN SHARES ACTIVITIES. THE TAX AUDITOR O F THE ASSESSEE FIRM IN HIS TAX AUDIT 5 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 5 REPORT DATED 10.8.2010 IN FORM NO. 3CD IN CLAUSE NO . 12(A) WHICH REQUIRES THE TAX AUDITOR TO STATE THE METHOD OF VALUATION OF CLOSING STOCK IN THE PREVIOUS YEAR HAS STATED NOT APPLICABLE , I.E THE TAX AUDITOR IS REQUIRED TO GIVE HIS COMMENT IF THE AUDITEE IS HOLDING STOCK IN TRADE. THOUGH THE ASSESSEE FIRM IS HOLDING SHARES OF VARIOUS COMPANIES AT THE YEAR END, THE SAME IS DISCLOSED AS INVESTMENTS IN THE BALANCE SHEET AND THEREFORE THE AUDITOR HAS MADE THE ABOVE REPORTING. THE ASSESSEE FIRM IS AN INVESTOR IN SHARES AND SECURITIES AND NOT A TRADER IS ALSO PROV ED BY THE TAX AUDITORS REPORTING IN CLAUSE NO. 28 TO 32 OF FORM 3CD. THE ASSESSEE SUBM ITTED THAT ALL THE SHARES HELD BY THE FIRM AT THE YEAR END ARE SHOWN IN THE BALANCE SHEET UNDER THE HEAD INVESTMENTS. ALL THE SHARES ON WHICH LONG TERM CAPITAL GAINS HAS BEE N EARNED BY THE ASSESSEE WERE OUT OF OPENING BALANCE OF SHARES HELD ON INVESTMENT ACCOUN T. MOST OF THE SHARES ON WHICH SHORT TERM CAPITAL GAINS HAS BEEN EARNED BY THE ASS ESSEE WERE ALSO OUT OF OPENING BALANCE OF SHARES HELD ON INVESTMENT ACCOUNT. THE SHARES WHICH HAS BEEN ACCEPTED AS INVESTMENT ON THE CLOSING DAY OF PREVIOUS YEAR CANN OT BECOME BUSINESS ASSET ON THE OPENING DAY OF NEXT YEAR WITHOUT ANY CHANGE OF FACT S AND CIRCUMSTANCES. THE FIRM HAS ALWAYS VALUED THE CLOSING INVESTMENTS IN SHARES AT COST AND NOT AT LOWER OF COST OR MARKET VALUE WHICH IS APPLICABLE ONLY TO TRADING CO NCERNS. THE FIRM HAS INVESTED IN THE SHARES WITH A VIEW TO EARNING DIVIDENDS AND HAS EAR NED SUBSTANTIAL AMOUNT AS DIVIDEND. THE CREDIT BALANCE OF THE PARTNERS ACCOUNT AS AT 31 .3.2010 WAS RS 6679 LACS WHILE THE INVESTMENT IN SHARES AND SECURITIES WERE RS 4994 LA CS. THUS THE INVESTMENT IN SHARES AND SECURITIES WERE OUT OF OWN FUNDS AND NOT OUT OF BORROWED FUNDS. THE ASSESSEE HAD REGULARLY MADE INVESTMENT IN SHARES AND ALWAYS IN T HE PAST THE INCOME FROM SALE OF INVESTMENTS HAVE BEEN ASSESSED AS CAPITAL GAINS. T HE ASSESSMENTS FOR THE ASST YEARS 2005-06 , 2006-07 , 2008-09 AND 2009-10 HAVE BEEN C OMPLETED U/S 143(3) OF THE ACT AND THE PROFITS / LOSSES ARISING OUT OF SALE OF SHA RES HAS BEEN ASSESSED UNDER THE HEAD CAPITAL GAINS IN ALL THE YEARS. IN THE ASST YEAR 2 009-10, THE ASSESSE HAD SUFFERED LOSS UNDER THE HEAD CAPITAL GAINS AND HAD CARRIED FORWAR D THE LOSS UNDER THE HEAD CAPITAL GAINS. THERE HAS NOT BEEN ANY CHANGE IN THE ACTIV ITIES AND OPERATIONS OF THE ASSESSE AS 6 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 6 COMPARED TO PAST YEARS NOR THERE HAS BEEN ANY CHANG E IN THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE ASSESSEE AS COMPARED TO PAST YEARS. THE ASSESSEE MAKES RESEARCH AND IDENTIFIES THE COMPANIES, THE SHARE PRICES OF WHICH IT FEELS ARE UNDERVALUED AND HAVE A GOOD DIVIDEND TRACK RECORD. AFTER SUCH IDENTIFICAT ION, IT DECIDES TO INVEST A CERTAIN QUANTUM OF MONEY IN THE SHARES OF SUCH COMPANIES AN D THEREAFTER PLACES ORDER WITH ITS BROKERS TO BUY A SPECIFIED QUANTITY OF SHARES OF SU CH COMPANIES AT SPECIFIED RANGE OF PRICE. ONCE SUCH SHARES ARE ACQUIRED WITHIN A PERI OD, THE ASSESSEE HOLDS SUCH SHARES FOR A LONG PERIOD OF TIME. NORMALLY, ONCE THEY START S ELLING THE SAID SHARES, THEY DO NOT PURCHASE THE SAME SHARES AGAIN IN A SHORT TIME. THE SHARES IN QUESTION WERE PURCHASED BY THE ASSESSEE WITH AN INTENTION TO HOLD THE SAME. HOWEVER, THE VAGARIES OF THE STOCK MARKET ARE WELL KNOWN. AS IT TRANSPIRED, IN SOME C ASES, THE ASSESSEE WAS SUDDENLY FACED WITH THE RISK OF LOSING ITS INVESTMENT. IN S OME CASES, THE SUDDEN RISE IN SHARES PRICES WAS SUCH THAT IT WOULD HAVE BEEN IMPRUDENT T O HOLD ON TO THE SHARES IN THE EXPECTATION THAT LONG TERM HOLDING MAY FETCH A BETT ER RETURN. IN SUCH CASES, THE ASSESSEE CONSIDERED IT PRUDENT TO SELL THE SHARES. IT WOULD BE EVIDENT FROM THE RECORDS THAT THERE WAS NO REGULAR, SYSTEMATIC AND ORGANIZED ACTIVITY O F PURCHASE AND SALE WHICH CAN INDICATE THAT THE SAME WERE BY WAY OF BUSINESS. SU CH PURCHASE AND SALES ARE INVESTMENTS MADE IN USUAL COURSE. IT WAS EXPLAINED THAT EVEN IN RESPECT OF SHORT TERM CAPITAL GAINS DERIVED BY THE ASSESSEE, THE AVERAGE HOLDING PERIOD OF SHARES IS SUBSTANTIALLY LONG I.E MORE THAN 200 DAYS WHICH FA CT ITSELF GOES TO PROVE THAT THE ASSESSEE IS ONLY AN INVESTOR. THE PARTNERS OF THE ASSESSEE FIRM ARE OTHERWISE GAINFULLY EMPLOYED IN THEIR OWN BUSINESS ACTIVITIES. THE PA RTNERS HAVE BROUGHT IN THEIR OWN FUNDS INTO THE FIRM WITH THE OBJECT OF COLLECTIVELY INVESTING THE SAME SO AS TO HAVE A LARGER CORPUS. IT WAS EXPLAINED THAT IT IS ONLY BE CAUSE OF LARGE CORPUS, THAT THE CAPITAL GAINS APPEAR TO BE RELATIVELY LARGE. 3.2.1. THE ASSESSEE FURNISHED THE DEMAT STATEMENTS OF ADANI ENTERPRISES LTD , MERCATOR LINES LTD AND PATNI COMPUTER SYSTEMS LTD. WITH REG ARD TO DEMAT STATEMENT OF LANCO 7 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 7 INFRATECH LTD AND ADHUNIK METALIKS LTD, IT WAS EXPL AINED THAT THE SHARES OF THESE TWO COMPANIES WERE PURCHASED BY THE ASSESSEE ON DELIVER Y SEGMENT AND NOT IN THE NON DELIVERY SEGMENT (F&O). THE ASSESSEE SUBMITTED TH E CONTRACT NOTES OF PURCHASE AND SALE OF SHARES OF THE ABOVE TWO COMPANIES AND EXPLA INED FROM THE CONTRACT NOTES THAT THE SETTLEMENT TYPE MENTIONED IN THE CONTRACT NOTES S TATES ROLLING WHICH MEANS THAT THEY WERE DELIVERY PURCHASE / SALE. IT WAS ALSO POINTE D OUT THAT THE SECURITIES TRANSACTION TAX (STT) CHARGED WAS 0.125% WHICH IS THE RATE OF S TT FOR DELIVERY BASED TRANSACTIONS. 3.3. THE LD AO DID NOT HEED TO THE AFORESAID CONTEN TIONS OF THE ASSESSEE FOR THE FOLLOWING REASONS :- A) AS REGARDS THE CLASSIFICATION IN BALANCE SHEET I S CONCERNED, IT IS MERELY ILLUMINATORY AND NOT SACROSANCT. THEREFORE, THIS ARGUMENT THAT THEY HAVE BEEN REPRESENTED AS INVESTMENT AND VALUED AT COST PRICE IS NOT OF ANY S UBSTANTIVE VALUE. EVEN CLOSING STOCK CAN BE VALUED AT COST PRICE, IF DESIRED BY THE ASSE SSEE. B) SECOND IS THE ISSUE OF PURCHASE OF SHARES THROUG H OWN FUNDS. THIS ISSUE MUST BE SEEN IN THE CONTEXT OF THE FACT THAT THE ASSESSEES DEAL ING IN SHARES IS INCREASING OVER THE YEAR. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE B ORROWED RS 1036.69 LACS FROM ECL FINANCE LTD TO PURCHASE SHARES OF DQ ENTERTAINMENT (INTL) LTD ON WHICH IT HAS INCURRED AN INTEREST OF RS 24.27 LACS. THIS INTEREST OUTGO HAS BEEN CAPITALIZED (I.E ADDED AS COST OF INVESTMENT), WHICH IS NOT IN ACCORDANCE WITH ACC OUNTING STANDARD 13 ON INVESTMENTS ISSUED BY ICAI. HOWEVER, THIS VERY F ACT PROVES THAT THE ASSESSEES APPETITE FOR TAKING RISK IS INCREASING AND THAT THE ASSESSEE IS NOT ONLY INVESTING ITS FUNDS BROUGHT IN BY PARTNERS (CHANELLED FROM OTHER BUSINE SS) BUT ALSO ACTIVELY FUNDING THEM THROUGH BORROWERS. IT WOULD BE PERTINENT TO POINT OUT THAT THESE FINANCED SUBSCRIPTIONS ARE USUALLY PLEDGED TO THE FINANCING AUTHORITY EITH ER THROUGH AGREEMENT OR THROUGH 8 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 8 UNDERSTANDING. THIS FACT OF FINANCING THROUGH ANO THER AGENCY IS PECULIAR TO THIS YEAR UNDER CONSIDERATION AND THEREFORE THE FINDINGS OF E ARLIER YEARS ARE DIFFERENT AS ALSO THE FACT THAT THE ASSESSEE HAS PLEDGED ITS SHARES FOR T HE PURPOSE OF RAISING MONIES. TO THIS EXTENT, THE ASSESSEES CLAIM THAT IT IS UTILIZING I TS OWN FUNDS IS NOT FOUND TO BE CORRECT. IN ANY CASE, IT IS THE INTENTION THAT IS OF PARAMOU NT IMPORTANCE WHEN THE SHARE TRANSACTION IS CHARACTERIZED AS INVESTMENT OR BUSIN ESS. C) THE ASSESSEE HAS CLAIMED THAT THESE SHARES HAVE BEEN PURCHASED ON THE BASIS OF RESEARCH REPORTS AND WITH A LONG TERM PERSPECTIVE I N MIND. THIS ARGUMENT IS ALSO NOT ACCEPTABLE AS NO RESEARCH REPORTS WHICH FORMED THE BASIS OF PURCHASE OF PARTICULAR SHARE HAVE BEEN BROUGHT ON RECORD. D) 3 SCRIPS, I.E ADANI ENTERPRISES LTD , MERCATOR LINES LTD AND PATNI COMPUTER SYSTEMS LTD , WERE HELD BY THE ASSESSEE FOR A VERY SHORT PE RIOD OF TIME AND HENCE THE ASSESSEES INTENTION IS NOT HOLD THE SAME WITH A VIEW TO EARN DIVIDEND INCOME. HENCE THE RESULTANT GAINS THEREON ARE TO BE TREATED AS BUSINESS INCOME AND NOT SHORT TERM CAPITAL GAINS. E) MOREOVER, IN RESPECT OF SCRIPS OF ADHUNIK METALI KS LTD AND LANCO INFRATECH LTD, THE SCRIPS HAVE NOT BEEN DELIVERED INTO ASSESSEES DEMA T ACCOUNT. HENCE THE SAME NEEDS TO BE TREATED AS SPECULATIVE PROFIT IN TERMS OF SECTIO N 43(5) OF THE ACT. WITH REGARD TO THE CLAIM OF THE ASSESSEE THAT THESE TWO SCRIPS WERE TR ANSACTED BASED ON ROLLING SETTLEMENT , THE LD AO OBSERVED THAT THIS TYPE OF SETTLEMENT PROVIDES FOR NETTING I.E ALL PURCHASES AND SALES ARE TAKEN INTO ACCOUNT AT THE D ATE OF SETTLEMENT. THEREFORE WHEN A CLIENT ENTERS INTO A ROLLING SETTLEMENT , IT IS WIT H THE INTENTION THAT HE WOULD HAVE BOTH PURCHASES AND SALES ON THE DATE OF SETTLEMENT. THE REFORE, THIS TYPE OF SETTLEMENT IN FACT GOES ON TO PROVE THAT AT THE TIME OF PURCHASE OF SC RIPS OF LANCO INFRATECH LTD AND ADHUNIK METALIKS LTD , THE ASSESSEE HAD THE PRIOR I NTENTION OF SELLING IT BEFORE THE 9 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 9 SETTLEMENT DATE AND THE NET AMOUNTS WOULD BE SETTLE D. THUS THERE WAS NO INTENTION TO TAKE DELIVERY. 4. THE LD CITA GRANTED RELIEF TO THE ASSESSEE BY OB SERVING AS UNDER:- AFTER CAREFUL CONSIDERATION OF THE FACTS AND CIRCU MSTANCES OF THE CASE AND SUBMISSION OF THE APPELLANT, I FIND MERIT IN THE ARGUMENT OF T HE APPELLANT. LOOKING TO THE FACTS, I.E. HISTORY OF THE BUSINESS OF THE APPELLANT, THEIR INT ENTION TO EARN BENEFIT OUT OF INVESTMENTS, UTILIZATION OF FUNDS, DETAILS OF PAYME NTS MADE FOR PURCHASES OF SHARES AND PAYMENTS RECEIVED TOWARDS SALE OF SHARES, HOLDING P ERIOD OF SHARES ETC, IT IS GATHERED THAT THE NATURE OF TRANSACTIONS MADE BY THE APPELLA NT WERE NOT OF TRADING BUT INVESTMENTS IN THE SHARES. IT IS WORTH TO MENTION H ERE THAT A DIVIDEND OF RS. 64,97,897/- WAS EARNED DURING THE YEAR. THE FREQUENCY OF INVEST MENTS MADE IT CLEAR THAT THE INTENTION OF THE APPELLANT WAS NOT IN THE NATURE OF TRADING. FURTHER, WITH REGARD TO SPECULATION PROFIT ON ACCOUNT OF SHARES TRANSACTION S OF TWO COMPANIES TREATED BY THE AO, IT IS GATHERED THAT THERE WAS PAYMENTS MADE/REC EIVED WITH REFERENCE TO THE PURCHASES/SALES OF THE SHARES OF THOSE COMPANIES. T HE SHARES IN QUESTION WERE SETTLED BY DELIVERY TO THE APPELLANTS BROKER, THEREFORE, IT C ANNOT BE SAID THAT THE TRANSFER WAS TAKEN PLACE NON-DELIVERY BASIS. THIS IS NOT THE CAS E IN WHICH ONLY DIFFERENCE AMOUNT WITH REFERENCE TO PURCHASE AND SALE PRICE OF THE SH ARES WAS PAID. THE SHARES WERE PURCHASED AND SOLD IN THE DELIVERY SEGMENT OF THE S TOCK EXCHANGE AND NOT IN THE DERIVATIVE SEGMENT. THE FACTS THAT THE GROSS VALUE OF THE SHARES PURCHASED/SOLD WERE PAID/RECEIVED ON DUE DATES, THE STT WAS CHARGED AT THE RATE APPLICABLE FOR DELIVERY BASED TRANSACTIONS AND DELIVERY OF THE SHARES WAS R ECEIVED BY THE BROKER ON BEHALF OF THE APPELLANT. ALL THESE FACTS MAKE IT CLEAR THAT T HE SHARE TRANSACTIONS WERE OUTSIDE THE AMBIT OF SECTION 43(5) OF THE INCOME TAX ACT, 1961. IN VIEW OF THE ABOVE FACTS, BOTH THE GROUNDS OF APPEAL ARE DECIDED IN FAVOUR OF THE APPE LLANT. 5. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS:- 1. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW LD. CIT(A) ERRED IN GIVING RELIEF TO THE ASSESSEE W.R.T THE TREATMEN T OF S.T.C.G. OF RS. 2,34,61,815/- AS INCOME FROM SHARE TRADING UNDER THE HEAD PROFIT AND GAINS FROM BUSINESS AND PROFESSION. 2. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW LD. CIT(A) ERRED IN GIVING RELIEF TO THE ASSESSEE W.R.T. THE TREATME NT OF S.T.C.G. OF RS. 49,75,689/- AS SPECULATION PROFIT. 3. THE APPELLANT CRAVES THE LEAVE TO MAKE ANY ADDIT ION, ALTERATION, MODIFICATION OF GROUNDS AT THE APPELLATE STAGE. 10 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 10 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE HAD BEEN CONSISTENTLY MAK ING INVESTMENT IN SHARES OVER THE YEARS OUT OF THE OWN FUNDS PUMPED IN BY THE PARTNER S FROM TIME TO TIME AND HAS BEEN REFLECTING THE SAME AS INVESTMENTS IN ITS BALANCE SHEET OVER THE YEARS. THIS HAS BEEN ACCEPTED BY THE REVENUE IN THE SCRUTINY ASSESSMENTS COMPLETED IN EARLIER YEARS U/S 143(3) OF THE ACT FOR THE ASST YEARS 2005-06 , 2006 -07 , 2008-09 AND 2009-10. IN FACT THE ASSESSEE HAD INCURRED CAPITAL LOSS IN ASST YEAR 2009-10 WHICH HAS ALSO BEEN ACCEPTED BY THE REVENUE IN THE SCRUTINY ASSESSMENT COMPLETED THEREON AND ALLOWED THE SAME TO BE SET OFF WITH THE CAPITAL GAINS ASSESSED IN THE YEAR UNDER APPEAL. 6.1. WE FIND THAT THE ENTIRE INVESTMENT IN SHARES W ERE MADE WITH THE INTENTION OF EARNING DIVIDEND AS COULD BE SEEN THAT THE ASSESSEE HAD EAR NED DIVIDEND OF RS 64,97,897/-. WE HOLD THAT EVEN IF THE SHARES ARE HELD AS INVESTMENT S, THERE IS NOTHING WRONG FOR AN INVESTOR TO EXIT FROM THE SCRIP AT THE RIPE TIME BY WAY OF CAPITAL APPRECIATION. SIMILARLY IF THE MARKET NEWS POSES A THREAT ON A PARTICULAR S CRIP RESULTING FROM A BAD INVESTMENT DECISION, THEN IRRESPECTIVE OF THE PERIOD OF HOLDIN G OF THE SAME, THERE IS NOTHING WRONG TO EXIT FROM THE SAID SCRIP WITH MINIMUM LOSSES. T HIS DOES NOT CHANGE THE CHARACTER AND INTENTION OF THE PARTY WHILE INVESTING IN THE SHARE S. THIS COULD BE SEEN FROM THE FREQUENT BEHAVIOUR OF THE ASSESSEE HEREIN WHILE DEA LING WITH THE SHARES. 6.2. WE FIND THAT EVEN ACCORDING TO THE LD AO, THE ASSESSEE HAD EXITED FROM SHARES WITH MINIMUM HOLDING PERIOD ONLY IN RESPECT OF THREE SCR IPS VIZ. ADANI ENTERPRISES LTD, MERCATOR LINES LTD AND PATNI COMPUTER SYSTEMS LTD. EVEN IN THESE SCRIPS, THE ASSESSEE HAD MADE HUGE GAINS OF RS 2,34,61,815/- DESPITE HOL DING THE SCRIPS FOR LESS THAN 24 DAYS. THIS ITSELF PROVES THE FACT THAT THE ASSESSE E HAD MADE THE INVESTMENT BASED ON SPECIFIC MARKET NEWS AND MARKET RESEARCH (WHICH NEE D NOT BE NECESSARILY DOCUMENTED BY WAY OF ANY WRITTEN RESEARCH REPORTS) . WE FIND THAT THE RELIANCE PLACED BY THE LD AR ON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CI T VS MERLIN 11 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 11 HOLDINGS P LTD REPORTED IN (2015) 375 ITR 118 (CAL) IS WELL FOUNDED WHEREIN IT WAS HELD THAT THE BENEFIT OF SHORT TERM CAPITAL GAINS C AN BE AVAILED OF FOR ANY PERIOD OF RETENTION OF SHARES UPTO 12 MONTHS. ALTHOUGH A CEI LING HAS BEEN PROVIDED, THERE IS NO INDICATION AS REGARDS THE FLOOR, WHICH CAN BE AS LI TTLE AS ONE DAY. WE FIND THAT THE AVERAGE HOLDING PERIOD OF THE VARIOUS SCRIPS DEALT WITH BY THE ASSESSEE IS MORE THAN 200 DAYS AND HENCE BY ANY STRETCH OF IMAGINATION, IT WO ULD BE UNFAIR TO CALL THE ASSESSEE AS A TRADER IN SHARES. 6.3. WE FIND THAT EVEN THE BORROWINGS MADE DURING T HE YEAR WERE WITH REGARD TO THE FUNDING DONE FOR PURCHASE OF SHARES UNDER INITIAL P UBLIC OFFER (IPO) OF DQ ENTERTAINMENT LTD , FOR WHICH AN INTEREST WAS PAID FOR A SHORT DURATION OF TIME. THIS INTEREST PAYMENT OF 24.27 LACS WAS SOUGHT TO BE CAP ITALIZED BY THE ASSESSEE BY ADDING TO THE COST OF INVESTMENTS. MOREOVER, WE FIND THAT TH E ASSESSEE HAD NOT MADE ANY SALE OF SHARES OF DQ ENTERTAINMENT LTD DURING THE YEAR , WH ICH AGAIN GOES TO PROVE THAT THE ASSESSEE HAD RETAINED THE SHARES PURCHASED THROUGH IPO FOR A LONGER DURATION OF TIME. IN FACT WE FIND THAT WHEN THE SHARES OF DQ ENTERTAINME NT LTD WAS SOLD IN ASST YEAR 2011- 12, THE INTEREST COMPONENT ALSO WAS ALLOWED TO BE T REATED AS COST AND ULTIMATELY THE DISPUTE GOT RESOLVED IN FAVOUR OF THE ASSESSEE BY T HE ORDER OF THIS TRIBUNAL IN ITA NO. 2056/KOL/2014 DATED 11.10.2017 ACCEPTING THE STATUS OF THE ASSESSEE AS AN INVESTOR AND SHORT TERM CAPITAL GAINS ASSESSED ACCORDINGLY. THIS TRIBUNAL HAD HELD THAT MERELY BECAUSE THE SHARES WERE PURCHASED THROUGH BORROWED CAPITAL CANNOT BE A GROUND FOR CAPITAL GAIN TO BE ASSESSED AS BUSINESS INCOME. T HE IPO FUNDING AVAILED BY THE ASSESSEE WAS TO GET MORE ALLOTMENT OF SHARES BUT TH E FACT OF THE MATTER IS THAT THE ASSESSEE WAS AN INVESTOR AND SOLE INTENTION OF APPL YING IN THE SHARES THROUGH IPO WAS TO GET HIGHER ALLOTMENT OF SHARES. THERE WAS NO REPE TITIVE PURCHASE AND SALE OF THE SAME SCRIP IN THE ASSESSEES CASE UNDER CONSIDERATION, W HICH MEANS THAT THERE WAS NO CHURNING OF SHARES. THE TRIBUNAL WENT ON FURTHER T O HOLD THAT THE ASSESSEE HAS ACCUMULATED CAPITAL LOSSES FROM THE PAST IN THE FOR M OF SHORT TERM CAPITAL LOSSES AND AS 12 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 12 PER THE ASSESSMENTS FRAMED BY THE DEPARTMENT IN PAS T YEARS, IT IS ENTITLED TO SET OFF THOSE LOSSES WITH SHORT TERM CAPITAL GAINS IN SUBSEQUENT YEARS. IF THE DEPARTMENT IS CHANGING ITS STAND AND TREAT THE ASSESSEE AS A TRADER IN SHA RES, THEN THE ASSESSEE WOULD NOT BE ABLE TO SET OFF THESE LOSSES WHICH WOULD BE UNJUSTIFIED. IT IS WELL SETTLED THAT PRINCIPLE OF RES JUDICATA IS NOT APPLICABLE IN INCOME TAX PROCEEDINGS, BUT THE RULE OF CONSISTENCY CANNOT BE GIVEN A GOBY WHEN THERE IS NO CHANGE IN FACTS AN D CIRCUMSTANCES WHEN COMPARED TO EARLIER YEARS. RELIANCE IN THIS REGARD IS PLACED O N THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF RADHASAOMI SATSANG REPORTED IN 193 ITR 321 (SC) . 6.4. IN VIEW OF THE AFORESAID FINDINGS, WE HOLD THA T THE ACTION OF THE LD AO IN TREATING THE GAINS DERIVED FROM THREE SCRIPS TO THE TUNE OF RS 2,34,61,815/- AS BUSINESS INCOME IS UNJUSTIFIED AND THE LD CITA HAD RIGHTLY TREATED THE M AS SHORT TERM CAPITAL GAINS. ACCORDINGLY, THE GROUND NO. 1 RAISED BY THE REVENUE IS DISMISSED. 6.5. WITH REGARD TO THE GAINS DERIVED FROM TWO SCRI PS VIZ. ADHUNIK METALIKS LTD AND LANCO INFRATECH LTD, THE LD AO HAD TREATED THE SAME AS SPECULATIVE GAINS AS NO DELIVERY OF SHARES WAS TAKEN BY THE ASSESSEE AND THE LD AO A LSO OBSERVED THAT THE ASSESSEE HAD MADE ONLY THE NET PAYMENT AT THE TIME OF SETTLEMENT OF THE TRANSACTION. IN OTHER WORDS, IT IS THE CONTENTION OF THE LD AO THAT THE ASSESSEE HAD DECIDED TO SELL THE SHARES EVEN BEFORE ITS PURCHASE AND TAKING DELIVERY OF THE SAME AND THAT IS THE REASON IT HAD NOT FIGURED IN THE DEMAT STATEMENT OF THE ASSESSEE AND THE ASSESSEE HAD TO PAY ONLY THE NET AMOUNT TO THE BROKER. THE LD AR EXPLAINED THAT SIN CE THE ABOVE SHARES WERE SOLD BEFORE RECEIVING THE DELIVERY OF THE ABOVE SHARES FROM THE SHARE BROKER, THE SAME WERE NOT ROUTED THROUGH THE ASSESSEES DEMAT ACCOUNT. IN THI S CONTEXT, IT WAS SUBMITTED THAT SINCE THE SHARES IN QUESTION WERE SETTLED BY THE DELIVERY OF THE ABOVE SHARES BY THEIR BROKER, ACTUAL / TRANSFER DELIVERY AS REQUIRED U/S 43(5) OF THE ACT TO TREAT THE TRANSACTIONS AS NON- SPECULATIVE HAD BEEN MET. IN EFFECT THAT THE TRANS FER OF THESE TWO SHARES HAD BEEN CARRIED OUT BY THE AGENT (I.E BROKER) OF THE ASSESS EE BY WAY OF DELIVERY AND HENCE IS 13 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 13 AUTOMATICALLY OUTSIDE THE SCOPE OF SECTION 43(5) OF THE ACT. WE FIND THAT THE ASSESSEE HAD ENCLOSED TWO PAGES IN THE FORM OF CONFIRMATION OF STOCK BROKER AS EVIDENCE OF SHARES RECEIVED BY THEM FOR AND ON BEHALF OF THE AS SESSEE VIDE PAGES 95 & 96 OF THE SECOND PAPER BOOK. SINCE THE SAME WERE NOT PRODUCE D BEFORE THE LOWER AUTHORITIES AND IN THE ABSENCE OF A SEPARATE PETITION FROM THE ASSE SSEE FOR RECEIPT OF THIS ADDITIONAL EVIDENCE, WE DO NOT DEEM IT FIT TO ADMIT THE SAME. THE LD AR ALSO FAIRLY STATED THAT HE WOULD NOT PLACE ANY RELIANCE ON THOSE TWO PAGES WHI LE ADDRESSING THE ISSUE IN DISPUTE BEFORE US. HENCE THESE TWO PAGES OF THE SECOND PAP ER BOOK ARE NOT ADMITTED AS EVIDENCE TO ADDRESS THE DISPUTE BEFORE US. WE FIND FROM THE PERUSAL OF THE DOCUMENTS ENCLOSED IN THE PAPER BOOK THAT THE OBSERVATIONS OF THE LD AO ARE FACTUALLY INCORRECT. WE FIND FROM PAGE 78 OF THE SECOND PAPER BOOK THAT THE ASSESSEE HAD MADE INDEPENDENT PAYMENT OF RS 34,14,414.69 WHICH INCLUDES PURCHASE VALUE OF SHARES OF ADHUNIK METALIKS LTD FOR RS 34,10,161.69 AND STT OF RS 4,25 3/- . THIS HAS BEEN DEBITED IN ITS BANK STATEMENT AS AN INDEPENDENT ENTRY. SIMILARLY WHEN THESE SHARES ARE SOLD, THE ASSESSEE HAD RECEIVED AN INDEPENDENT CREDIT ENTRY R EFLECTED IN THE BANK STATEMENT TO THE TUNE OF RS 36,68,500.77. FROM THE PERUSAL OF THE C ONTRACT NOTES ENCLOSED IN THE SECOND PAPER BOOK, WE FIND THAT THE ASSESSEE HAD PURCHASED 84851 SHARES OF ADHUNIK METALIKS LTD IN BSE AFTER SUFFERING STT @ 0.125% ON THE PUR CHASE VALUE WHICH IS THE RATE APPLICABLE TO SHARES PURCHASED IN DELIVERY SEGMENT. WE FIND THAT THE ASSESSEE HAD SOLD 5000 SHARES OF ADHUNIK METALIKS LTD IN BSE AND 7985 1 SHARES IN NSE AFTER SUFFERING STT @ 0.125% THEREON. ALL THESE TRANSACTIONS ARE DULY SUPPORTED BY THE CONTRACT NOTES ENCLOSED IN PAGES 78 TO 80 OF THE SECOND PAPE R BOOK. SIMILARLY THE ASSESSEE HAD PURCHASED 48000 SHARES OF LANCO INFRATECH LTD IN BS E AND 52000 SHARES OF LANCO INFRATECH LTD IN NSE AFTER SUFFERING STT @ 0.125% ON THE PURCHASE VALUE WHICH IS THE RATE APPLICABLE TO SHARES PURCHASED IN DELIVERY SEG MENT. WE FIND THAT THE ASSESSEE HAD SOLD 50600 SHARES OF LANCO INFRATECH LTD IN NSE AND 49400 SHARES IN BSE AFTER SUFFERING STT @ 0.125% THEREON. ALL THESE TRANSAC TIONS ARE DULY SUPPORTED BY THE CONTRACT NOTES ENCLOSED IN PAGES 81 TO 84 OF THE SE COND PAPER BOOK. WE FIND FROM THE 14 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 14 SAID CONTRACT NOTES THAT THE SETTLEMENT TYPE MENTIO NED IN SHARES TRADED IN NSE IS MENTIONED AS NORMAL AND THE SETTLEMENT TYPE MENTI ONED IN SHARES TRADED IN BSE IS MENTIONED AS ROLLING. HOWEVER, THE STT IS SUFFE RED @ 0.125% IN BOTH NSE AND BSE WHICH IS THE RATE APPLICABLE FOR THE DELIVERY B ASED SEGMENT OF SHARES. THE STT RATE APPLICABLE FOR NON-DELIVERY BASED SEGMENT IS 0 .017% WHICH IS DIFFERENT FROM THAT APPLICABLE TO DELIVERY BASED SEGMENT. THESE DOCUME NTS CONCLUSIVELY PROVE THAT THE SHARES OF THESE TWO SCRIPS HAD TAKEN PLACE IN DELIV ERY BASED SEGMENT AND HENCE IS AUTOMATICALLY OUTSIDE THE AMBIT OF SPECULATIVE TRAN SACTIONS AND THE PROVISIONS OF SECTION 43(5) OF THE ACT CANNOT BE MADE APPLICABLE TO IT. HENCE WE HOLD THAT THE LD CITA HAD RIGHTLY TREATED THE GAINS OF RS 49,75,689/- FORM TH ESE TWO SCRIPS AS SHORT TERM CAPITAL GAINS AS AGAINST SPECULATIVE INCOME TREATED BY THE LD AO. ACCORDINGLY, THE GROUND NO. 2 RAISED BY THE REVENUE IS DISMISSED. 7. THE GROUND NO. 3 RAISED BY THE REVENUE IS GENERA L IN NATURE AND DOES NOT REQUIRE ANY SPECIFIC ADJUDICATION. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 01.12.2017 SD/- SD/- [S.S. VISWANETHRA RAVI] [ M.BALAGA NESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 01.12.2017 SB, SR. PS 15 ITA NO.1260/KOL/2014 M/S EVEREST FINANCE & INVESTMENT CO. A.YR. 2010-11 15 COPY OF THE ORDER FORWARDED TO: 1. ACIT, CIRCLE-34, KOLKATA, AAYAKAR POORVA, 7 TH FLOOR, 110, SHANTIPALLY, KOLKATA-107. 2. M/S EVEREST FINANCE & INVESTMENT CO., 5, MANGOE LANE, KOLKATA-1. 3..C.I.T.- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S