ACIT 30 (1), MUMBAI V. JIGNESH MADHUKANT MEHTA, MUMBAI

ITA 3742/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0695 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 30-03-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 17-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARUN KUMAR LD
• Assessee Lawyers: HEMANT VORA LD
• Keywords: Capital asset; Business income; Salary income; Earning of tax free income
• Section: 143(3); 14A

Judgement Text

ITA NO.3742/MUM/2015 JIGNESH MADHUKANT MEHTA ASSESSMENT YEAR 2010-11 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI . . , , BEFORE SHRI D.T. GARASIA, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 3742/MUM/2015 ( / ASSESSMENT YEAR: 2010-2011) ASSISTANT COMMISSIONER OF INCOME TAX 30(1) C-13, 5 TH FLOOR ROOM NO. 503 PRATYAKSHKAR BHAVAN BKC, BANDRA (E) MUMBAI 400 051 / VS. JIGNESH MADHUKANT MEHTA, 53, RUSTOMJEE REGENCY ADARSH MARVE ROAD MALAD(W) MUMBAI 400 064 ./ ./PAN/GIR NO. ACRPM-4513-H ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) ASSESSEE BY : HEMANT VORA ,LD. AR REVENUE BY : ARUN KUMAR, LD. DR / DATE OF HEARING : 08/05/2017 / DATE OF PRONOUNCEMENT : 12/05/2017 ITA NO.3742/MUM/2015 JIGNESH MADHUKANT MEHTA ASSESSMENT YEAR 2010-11 2 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1 . THE CAPTIONED APPEAL BY REVENUE FOR ASSESSMENT YEAR [AY] 2010- 11 ASSAILS THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-41 [CIT(A)], MUMBAI DATED 13/03/2015 QUA DIRECTING TREATMENT OF BUSINESS INCOME OF RS.2,62,28,530/- AS CAPITAL GAIN DESPITE HAVING LARGE NUMBER OF SHARE TRANSACTIONS. IN GROUND NO. 2, THE REVENUE HAS AGITATED DELETION OF DISALLOWANCE U/S 14A OF RS.6,25,414/- BY LD. CIT (A). 2. BRIEFLY STATED, THE ASSESSEE, BEING RESIDENT INDIVIDUAL , WAS ASSESSED U/S 143(3) AT RS.3,95,62,876/- AS AGAINST RETURNED INCOME OF RS.3,54,94,358/- E-FILED BY ASSESSEE ON 14/08/2010. THE ASSESSEE EARNED INCOME FROM SALARY AND TRADING IN SHARES AND REFLECTED AN AMOUNT OF RS.2,62,28,530/- UNDER THE HEAD SHORT TERM CAPITAL GAINS AGAINST SALE OF CERTAIN SCRIPS THE HOLDING PERIOD O F WHICH WAS MORE THAN 30 DAYS. THE GAINS FROM SHARES, THE HOLDING PERIOD OF WHICH WAS LESS THAN 30 DAYS, WERE OFFERED AS BUSINESS INCOME. HOWEVER, NOT CONVINCED WITH THE SAID CLASSIFICATION MADE BY THE ASSESSEE AND AFTER APPRECIATING THE VOLUME AND QUANTITY OF SHARES TRAD ED BY ASSESSEE, THE LD. AO CONCLUDED THAT THE ASSESSEE WAS REGULARLY EN GAGED IN SHARE TRADING ACTIVITY IN BUSINESS-LIKE MANNER AND HENCE THE SAME WAS TAXABLE AS BUSINESS INCOME AS AGAINST SHORT TERM CAPITAL GAIN REFLECTED BY ASSESSEE. ANOTHER ADDITION WAS RELATED WITH SECTION 14A DISALLOWANCE READ WITH RULE 8D FOR RS.6,25,414/-. SINCE THE ASSESSEE EARNED CERTAI N EXEMPT INCOMES AGGREGATING IN ALL TO RS.18,44,132/- , THE AO COMPUTED ITA NO.3742/MUM/2015 JIGNESH MADHUKANT MEHTA ASSESSMENT YEAR 2010-11 3 THE SAID DISALLOWANCE AS PER RULE 8D WHICH CAME TO RS.6,25,414/- WHICH COMPRISED OF RS.3,45,391/- U/R 8D(2)(I) & RS. 2,79,923/- U/R 8D(2)(III). 3. THE ASSESSEE ASSAILED BOTH THE ADDITIONS WITH SU CCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 13/03/2015, WHO AF TER CONSIDERING THE VARIOUS SUBMISSIONS OF THE ASSESSEE CONCLUDED THAT THE ASSESSEE WAS JUSTIFIED IN REFLECTING THE IMPUGNED TRANSACTIONS A S SHORT TERM CAPITAL GAIN. SIMILARLY, THE DISALLOWANCE U/S 14A WAS DELETED BY NOTING THAT THE ASSESSEE USED OWN FUNDS TO MAKE THE SAID INVESTMENT AND HENCE NO DISALLOWANCE WAS WARRANTED IN THE CIRCUMSTANCES. AG GRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 4. THE LD. DEPARTMENTAL REPRESENTATIVE ASSERTED THA T THE ASSESSEE ENTERED INTO HUGE SHARE TRANSACTIONS BOTH IN TERMS OF VOLUME AND QUANTITY AND THEREFORE, RIGHTLY ASSESSED UNDER BUSINESS HEAD AS SHARES TRADING ACTIVITY WAS CARRIED OUT IN A BUSINESS-LIKE MANNER ONLY . THE DISALLOWANCE U/S 14A DELETED BY CIT(A) HAS BEEN ASS AILED ON THE GROUND THAT THE ASSESSEE HAS NOT SUFFERED DISALLOWA NCE FOR INTEREST EXPENDITURE AS WRONGLY OBSERVED BY LD. CIT(A) BUT F OR ADMINISTRATIVE EXPENSES ONLY, THE QUANTUM OF WHICH WERE AS PER THE PRESCRIBED FORMULA GIVEN IN RULE 8D AND HENCE JUSTIFIED. 5. PER CONTRA THE LD. COUNSEL FOR ASSESSEE [AR] CONTENDED THAT TH E ASSESSEE WAS CONSISTENTLY BIFURCATING THE SAID TRAN SACTION IN THE SAME MANNER WHICH WAS ACCEPTED BY THE REVENUE ALL THROUG HOUT AND HENCE, THERE WAS NO REASON TO DISTURB THE SAME. FURTHER, A S PER SETTLED JUDICIAL PRONOUNCEMENTS, THE ASSESSEE COULD MAINTAIN TWO SEP ARATE PORTFOLIOS- ONE FOR BUSINESS AND ANOTHER FOR INVESTMENT, WHICH HAS BEEN DONE BY ITA NO.3742/MUM/2015 JIGNESH MADHUKANT MEHTA ASSESSMENT YEAR 2010-11 4 THE ASSESSEE. FURTHER, NO BORROWED FUNDS WERE USED BY THE ASSESSEE TO MAKE THE SAID INVESTMENTS AND AVERAGE HOLDING PERIO D OF THE SCRIPS WAS MORE THAN 72 DAYS AND THE TRANSACTIONS WERE DELIVER Y BASED TRANSACTIONS WHICH SUPPORTS THE ACTION OF THE ASSES SEE IN OFFERING THE INCOME UNDER THE HEAD CAPITAL GAINS. 6. THE LD. DEPARTMENTAL REPRESENTATIVE ASSERTED THA T THE PRINCIPLE OF RES JUDICATA WAS NOT APPLICABLE TO INCOME TAX PROCEEDINGS AND HE NCE, THE ASSESSEE COULD NOT SEEK BENEFIT OF THE SAME PAR TICULARLY WHEN ALL THE ASSESSMENT IN EARLIER YEARS WAS SUMMARY ASSESSMENT U/S 143(1). 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND RELEVANT MATERIAL ON RECORD. WE FIND THAT THE CLASSIFICATION OF INCOME FROM SHARE TRADING AS BUSINESS OR CAPITAL GAINS IS DEPENDENT UPON THE FACTS AND CIRCUMSTANCES AND THERE IS ONLY A THIN LINE SEPARAT ING THE TWO VIEW POINT. THE CBDT HAS SO FAR FOLLOWING INSTRUCTIONS / GUIDEL INES SO AS TO BEING CLARITY ON THE ISSUE: (I) INSTRUCTION NO. 1827 DATED 31/08/1989 (II) OFFICE MEMORANDUM DATED 13/12/2005 (III) CIRCULAR NO. 4/2007 DATED 15/06/2007 (IV) CIRCULAR NO. 6/2016 DATED 29/02/2016 CBDTS OFFICE MEMORANDUM DATED 13/12/2005 LIST FOLL OWING CIRCUMSTANCES TO BE CONSIDERED BY THE ASSESSING OFFICERS IN DETER MINING WHETHER A PERSON IS A TRADER OR AN INVESTOR IN STOCKS:- (I) WHETHER THE PURCHASE AND SALE OF SECURITIES WAS ALLIED TO HIS USUAL TRADE OR BUSINESS/WAS INCIDENTAL TO IT OR WAS AN OCCASIONAL INDEPENDENT ACTIVITY; (II) WHETHER, THE PURCHASE IS MADE SOLELY WITH THE INTENTION OF RESALE AT A PROFIT OR FOR LONG- TERM APPRECIATION AND/OR FOR EARNING DIVIDENDS AND INTEREST. (III) WHETHER SCALE OF ACTIVITY IS SUBSTANTIAL; (IV) WHETHER TRANSACTION WERE ENTERED INTO CONTINUO USLY AND REGULARLY DURING THE ASSESSMENT YEAR. (V) WHETHER PURCHASES ARE MADE OUT OF OWN FUNDS OR BORROWINGS; ITA NO.3742/MUM/2015 JIGNESH MADHUKANT MEHTA ASSESSMENT YEAR 2010-11 5 (VI) THE STATED OBJECTS IN THE MEMORANDUM AND ARTIC LES OF ASSOCIATION IN THE CASE OF CORPORATE ASSESSEE; (VII) TYPICAL HOLDING PERIOD FOR SECURITIES BOUGHT AND SOLD; (VIII) RATIO OF SALES TO PURCHASE AND HOLDING. (IX) THE TIME DEVOTED TO THE ACTIVITY AND THE EXTEN T T O WHICH IT IS THE MEANS OF LIVELIHOOD. (X) THE CHARACTERIZATION OF SECURITIES IN THE BOOKS OF ACCOUNT AND BALANCE SHEET AS STOCK- IN-TRADE OR INVESTMENT. (XI) WHETHER THE SECURITIES PURCHASED OR SOLD ARE L ISTED OR UNLISTED. (XII) WHETHER INVESTMENT IS IN SISTER/RELATED CONCE RNS OR INDEPENDENT COMPANIES. (XIII) WHETHER TRANSACTION IS BY PROMOTERS OF THE C OMPANY. (XIV) TOTAL NUMBER OF STOCK DEALT IN (XV) WHETHER MONEY HAS BEEN PAID OR RECEIVED OR WHE THER THESE ARE ONLY BOOK ENTRIES'. AS PER CIRCULAR NO. 4/2007 IT IS POSSIBLE FOR A TAX PAYER TO HAVE TWO PORTFOLIOS, I.E., AN INVESTMENT PORTFOLIO COMPRISING OF SECURIT IES WHICH ARE TO BE TREATED A CAPITAL ASSETS AND A TRADING PORTFOLIO COMPRISING O F STOCK-IN-TRADE WHICH ARE TO BE TREATED AS TRADING ASSETS. THE ABOVE INSTRUCT IONS HAVE PARTIALLY BEEN MODIFIED WITH RESPECT TO LISTED SECURITIES IN RECEN T CBDT CIRCULAR NO. 6/2016 DATED 29/02/2016 WHICH LAYS DOWN FOLLOWING FACTORS TO BE CONSIDERED FOR LISTED SECURITIES:- A) WHERE THE ASSESSEE ITSELF, IRRESPECTIVE OF THE P ERIOD OF HOLDING OF THE LISTED SHARES AND SECURITIES, OPTS TO TREAT THEM AS STOCK-IN-TRADE, T HE INCOME ARISING FROM TRANSFER OF SUCH SHARES/SECURITIES WOULD BE TREATED AS ITS BUSINESS INCOME, B) IN RESPECT OF LISTED SHARES AND SECURITIES HELD FOR A PERIOD OF MORE THAN 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF ITS TRANSFER, IF THE ASSESSEE DESIRES TO TREAT THE INCOME ARISING FROM THE TRANSFER THEREOF AS CAPITAL GAIN, THE SAME SHALL NOT BE PUT TO DISPUTE BY THE ASSESSING OFFICER. HOWEVER, THIS STAND, ONCE TA KEN BY THE ASSESSEE IN A PARTICULAR ASSESSMENT YEAR, SHALL REMAIN APPLICABLE IN SUBSEQU ENT ASSESSMENT YEARS ALSO AND THE TAXPAYERS SHALL NOT BE ALLOWED TO ADOPT A DIFFERENT /CONTRARY STAND IN THIS REGARD IN SUBSEQUENT YEARS; C) IN ALL OTHER CASES, THE NATURE OF TRANSACTION (I .E. WHETHER THE SAME IS IN THE NATURE OF CAPITAL GAIN OR BUSINESS INCOME) SHALL CONTINUE TO BE DECIDED KEEPING IN VIEW THE AFORESAID CIRCULARS ISSUED BY THE CBDT. FURTHER APEX COURT IN CIT V. ASSOCIATED INDUSTRIAL DEVELOPMENT CO. (P.) L TD. [1971] 82 ITR 586 (SC) HAS OBSERVED THAT:- WHETHER A PARTICULAR HOLDING OF SHARES IS BY WAY O F INVESTMENT OR FORMS PART OF THE STOCK- IN-TRADE IS A MATTER WHICH IS WITHIN THE KNOWLEDGE OF THE ASSESSEE WHO HOLDS THE SHARES ITA NO.3742/MUM/2015 JIGNESH MADHUKANT MEHTA ASSESSMENT YEAR 2010-11 6 AND IT SHOULD, IN NORMAL CIRCUMSTANCES, BE IN A POS ITION TO PRODUCE EVIDENCE FROM ITS RECORDS AS TO WHETHER IT HAS MAINTAINED ANY DISTINC TION BETWEEN THOSE SHARES WHICH ARE ITS STOCK-IN-TRADE AND THOSE WHICH ARE HELD BY WAY OF INVESTMENT. 8. APPLYING THE ABOVE PRINCIPALS UPON THE CASE IN H AND, WE FIND THAT ASSESSEE HAS CHOSEN TO TREAT THE SHARES HELD FOR MO RE THAN 30 DAYS UNDER THE HEAD INVESTMENT. THE ASSESSEE HAS SUFFI CIENT OWNED CAPITAL TO MAKE THESE INVESTMENTS. THE DEALINGS ARE PRIMARI LY IN LISTED SECURITIES AND THE ASSESSEE HAS UNDERTAKEN DELIVERY BASED TRAN SACTIONS, ALBEIT FOR SHORTER PERIOD OF TIME, AVERAGE HOLDING PERIOD BEIN G 72 DAYS. ALTHOUGH, WE ARE CONSCIOUS OF THE FACT THAT THE PRINCIPAL OF RES JUDICATA DO NOT APPLY TO INCOME TAX PROCEEDINGS, YET WE ARE OF THE VIEW THAT THERE OUGHT TO BE UNIFORMITY IN TREATMENT AND CONSI STENCY WHEN THE FACTS AND CIRCUMSTANCES ARE IDENTICAL. MOREOVER, LATE ST CBDT CIRCULAR NO.6/2016 WHICH IS CLARIFICATORY IN NATURE APPLIES TO LISTED SECURITIES AND DIRECTS AO NOT TO DISTURB THE STAND TAKEN BY ASSESS EE PROVIDED THE SAME IS APPLIED CONSISTENTLY. HENCE, WE FIND THAT THEIR CANNOT BE ANY STRAIGHT JACKET FORMULA TO DISTINGUISH THE SAME AND FURTHER THERE CANNOT BE ANY SINGLE DECISIVE FACTOR TO DETERMINE THE SAME BUT AN OVERALL VIEW HAS TO BE TAKEN KEEPING IN MIND PECULIAR FACTS AND CIRCUMS TANCES OF THE CASE. 9. AT THIS JUNCTURE, IT WOULD BE PRUDENT TO REPRODU CE THE RELEVANT CONCLUSION OF LD. CIT(A) IN THE IMPUGNED ORDER:- I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT , IMPUGNED ASSESSMENT ORDER AND THE MATERIAL AVAILABLE ON RECORD, THE APPELLANT HAS REFLECTED THE SHARES AS INVESTMENT IN THE BOOKS OF ACCOUNTS. DURING THE COU RSE OF THE APPELLATE PROCEEDINGS, THE APPELLANT FURNISHED THE DETAILS OF THE SHARE TRANSACTIONS MADE DURING THE YEAR ALOGNWITH THE COPIES OF THE PURCHAS E AND SALES BILLS, DEMAT STATEMENTS AND BANK STATEMENTS. ON PERUSAL OF THE S AME, IT APPEARS THAT THE APPELLANT HAD DULY RECORDED ALL THE SHARE TRANSACTI ONS HE HAD ENTERED INTO. THE APPELLANT HAD MAINTAINED TWO SEPARATE PORTFOLIOS VI Z. INVESTMENT PORTFOLIO AND BUSINESS PORTFOLIO. THE APPELLANT, ON AN AVERAGE, H AS HELD SCRIPS FOR AROUND 72 DAYS ITA NO.3742/MUM/2015 JIGNESH MADHUKANT MEHTA ASSESSMENT YEAR 2010-11 7 WHICH ALSO INDICATES THAT THE SHARES WERE HELD FOR INVESTMENT PURPOSES. HAD THE INTENTION BEEN TO EARN BUSINESS PROFITS, THE APPELL ANT WOULD HAVE MADE AN IMMEDIATE TURNAROUND SO AS TO EARN PROFITS IN SHORT DURATION. THE APPELLANT IS INVESTING AND TRADING IN THE STOCK MARKET BASED ON HIS OWN KNOWLEDGE AND NOT WITH ANY PROFESSIONAL HELP. THE APPELLANT HAS HELD THE S TOCKS AS ON THE LAST DAY OF THE YEAR AND WHICH WHEN SUBSEQUENTLY SOLD WERE TREATED AS LONG TERM CAPITAL GAINS BY THE AO. THE APPELLANT HAS ALSO EARNED DIVIDEND INCO ME OF RS.4.82 LACS, WHICH IN ITSELF REFLECTS THAT THE SHARES WERE HELD FOR INVES TMENT PURPOSES. FURTHER, THE APPELLANT IS A DIRECTOR IN MESH STOCK BROKERS PVT. LTD. AND ALSO A PARTNER IN FIVE OTHER FIRMS FROM WHERE THE APPELLAN T EARNS MAJOR SOURCE OF REVENUE. HAD THE APPELLANT ENGAGED INTO THE BUSINESS OF TRAD ING INTO THE SHARES, THE APPELLANT WOULD HAVE SPENT CONSIDERABLE TIME HERE A LSO, WHICH IS NOT THE CASE AS STATED BY THE APPELLANT. CONSIDERING ALL THE FACTS, THE LEGAL POSITION AND T HE JUDICIAL PRECEDENTS RELIED UPON BY THE APPELLANT, I AM OF THE VIEW THAT THE APPELLA NT HAS CARRIED OUT TRADING IN SHARES AS WELL AS EARNED CAPITAL GAINS INCOME ON SA LE OF SHARES WHICH WERE HELD AS INVESTMENT. ACCORDINGLY, THE TREATMENT OF GAINS OF RS.2,62,28,530/- AS BUSINESS INCOME IS NOT JUSTIFIED AND ACCORDINGLY I DIRECT T HE AO TO TREAT THE SAID GAINS OF RS.2,62,28,530/- AS SHORT TERM CAPITAL GAINS. THIS GROUND OF APPEAL IS ALLOWED. AFTER WEIGHING ALL THE FACTORS AS CITED ABOVE, WE F IND OURSELVES IN AGREEMENT WITH THE VIEW TAKEN BY CIT(A) AND THEREFO RE, WE ARE INCLINED TO REJECT THIS GROUND OF REVENUES APPEAL AND CONFI RM THE ORDER OF LD. CIT(A) IN THIS REGARD. 10. SO FAR AS DISALLOWANCE U/S 14A IS CONCERNED, UP ON PERUSAL OF FINANCIAL STATEMENT OF THE ASSESSEE, WE FIND THAT T HE ASSESSEE HAS DEBITED ADMINISTRATIVE EXPENDITURE OF RS.3,45,491/- WHICH IS THE MAXIMUM DISALLOWANCE WHICH THE ASSESSEE CAN SUFFER. HOWEVER, LD. AO HAS MADE DISALLOWANCE OF RS.6,25,414/- TOWARDS THE SAME WHICH IS NOT JUSTIFIED. THEREFORE, WE DELETE DISALLOWANCE OF RS. 3,45,391/- MADE U/R 8D(2)(I) WHILE CONFIRM THE ADDITION OF RS.2,79,923/ - MADE U/R 8D(2)(III). THIS GROUND OF REVENUES APPEAL PARTLY SUCCEEDS. ITA NO.3742/MUM/2015 JIGNESH MADHUKANT MEHTA ASSESSMENT YEAR 2010-11 8 11. IN NUTSHELL, THE REVENUES APPEAL STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH MAY, 2017. SD/- SD/- (D.T. GARASIA) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 12.05.2017 SR.PS:- THIRUMALESH / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$ ' / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT CONCERNED 5. #&- , - , / DR, ITAT, MUMBAI 6. . / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI