IN THE INCOME TAX APPELLATE TRIBUNAL
(DELHI BENCH `D' : NEW DELHI)
BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER
and
SHRI KULDIP SINGH, JUDICIAL MEMBER
ITA No.3910/Del./2011
(Assessment Year : 2007-08)
ACIT, Circle 17 (1), vs. Shri VIC Enterprises Pvt. Ltd.,
New Delhi. 4th Floor, Punjabi Bhawan,
10, Rouse Avenue,
New Delhi.
(PAN : AAACV0132B)
ITA No.3634/Del./2011
(Assessment Year : 2007-08)
Shri VIC Enterprises Pvt. Ltd., vs. ACIT, Circle 17 (1),
4th Floor, Punjabi Bhawan, New Delhi.
10, Rouse Avenue,
New Delhi.
(PAN : AAACV0132B)
(APPELLANT) (RESPONDENT)
ASSESSEE BY : Shri M.P. Rastogi, Advocate
REVENUE BY : Shri J.K. Mishra, CIT DR
Date of Hearing : 12.09.2019
Date of Order : 01.10.2019
ORDER
PER KULDIP SINGH, JUDICIAL MEMBER :
Present cross appeals filed by the assessee as well as by the
Revenue are being disposed off by way of composite order to avoid
repetition of discussion.
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ITA No.3634/Del./2011
2. Appellant, ACIT, Circle 17 (1), New Delhi (hereinafter
referred to as the `Revenue') by filing the present appeal being ITA
No.3910/Del/2011, sought to set aside the impugned order dated
06.06.2011 passed by the Commissioner of Income - tax
(Appeals)-XIX, New Delhi on the grounds inter alia that :-
"1. On the facts and in the circumstances of the case ad in
law, the learned CIT(A) erred in deleting the addition of
Rs.40,85,049/- by treating the business income as long term
capital gains.
2. On the facts and in the circumstances of the case and in
law, the learned CIT(A) failed to appreciate that the
Memorandum of Association of the assessee company stipulated
carrying on business of trading in investment and hence the
income derived by such activity was business income.
3. On the facts and in the circumstances of the case and in
law, the CIT (A) has failed to appreciate that the case of the
assessee squarely falls under the category of speculation business
as per Explanation to section 73 of the I. T. Act, 1961 as the
business of the assessee is trading in sale/purchase of mutual
funds. This is without prejudice to the other grounds of appeal as
agitated above.
4. On the facts and in the circumstances of the case and in
law, the learned CIT(A) has erred in deleting the addition of
Rs.5,71,780/- on account of interest without appreciating that
loans/advances were granted for non business purposes."
3. Appellant, M/s. VIC Enterprises Pvt. Ltd. (hereinafter
referred to as the `assessee') by filing the present appeal being ITA
No.3634/Del/2011, sought to set aside the impugned order dated
06.06.2011 passed by the Commissioner of Income - tax
(Appeals)-XIX, New Delhi on the grounds inter alia that :-
"1. Because the action is under challenge on facts and law in
declining the claim for the Investment Activity relating to shares
treating the same as Business Income which is not in accordance
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ITA No.3634/Del./2011
with the Regularly Followed Method of Accounting substantiated
by the Audited Financial Statement.
2. Because the action is under challenge on facts and law
for having treated the Gains Accrued on Disposal of Shares
amounting to Rs.2,75,11,065/- as Business Income whereas per
the assessee the same is Short Term Capital Gain Chargeable to
tax u/ s 111A.
3. Because the action is under challenge having overlooked
& ignored the CBDT circular No. 4/2007 Dt. 15.06.2007 in terms
of which the Gain arising on account of disposal of shares held
as Investment are liable to be taxed under the head Capital Gain
and the decision of the CIT(A) in the likely placed other cases.
4. Because the action is under challenge on facts and law
having followed the Hon'ble Delhi High Court overlooking the
facts of said case.
5. Because the action is under challenge on facts and law in
making an addition of Rs.7,54,488/- on account of STT paid
ignoring the fact that the appellant already disallowed the
expenses in Computation of Income."
4. Briefly stated the facts necessary for adjudication of the
issue at hand are : Assessee filed return of income at
Rs.2,67,34,667/- by making tax at special rate under section 111A
of the Income-tax Act, 1961 (for short `the Act'). Assessee
declared income from long term/short term capital gains and
income from business and profession. Assessee also claimed loss
on speculative/derivative transactions. Assessee has claimed
special rate of tax prescribed u/s 111A of the Act @ 10% of the
gain qua the short-term capital gain of Rs.2,75,11,065/-. Declining
the contentions raised by the assessee, Assessing Officer (AO)
made addition of Rs.2,75,11,065/- due to non-furnishing of
4 ITA No.3910/Del./2011
ITA No.3634/Del./2011
explanation sought for by the AO and by following reasons
recorded in the assessment order passed for AYs 2005-06 & 2006-
07 treated the short term capital gain shown by the assessee as
business income. AO also made addition of Rs.7,54,488/- on
account of Securities Transaction Tax (STT) on failure of the
assessee to reconcile the STT paid on purchases as well as on sale
of shares that the rate of STT applicable qua the concerned
transactions.
5. Assessee carried the matter by way of an appeal before the
ld. CIT (A) who has partly allowed the appeal. Feeling aggrieved,
the Revenue as well as the assessee has come up before the
Tribunal by way of filing the present cross appeals.
6. We have heard the ld. Authorized Representatives of the
parties to the appeal, gone through the documents relied upon and
orders passed by the revenue authorities below in the light of the
facts and circumstances of the case.
7. Since the tax effect in the appeal filed by the Revenue is low
i.e. less than Rs.50,00,000/-, in view of the CBDT Circular
No.17/2019 dated 8th August, 2019 which is applicable
retrospectively in view of the decision rendered by coordinate
Bench of the Tribunal in case of Dinesh Madhavlal Patel [TS-469-
ITAT-2019(Ahd)] 2019-TIOL-1556-ITAT-AHM dated 14th
5 ITA No.3910/Del./2011
ITA No.3634/Del./2011
August, 2019, the appeal of the Revenue being ITA
No.3910/Del/2011 is dismissed on account of low tax effect.
8. However, in view of the grounds raised by the assessee, the
assessee's appeal being ITA No.3634/Del/2011 is being disposed
off on merits.
ITA No.3634/Del/2011 (ASSESSEE'S APPEAL)
GROUNDS NO.1, 2, 3 & 4
9. Undisputedly, Assessing Officer as well as ld. CIT (A) have
made/confirmed the addition of Rs.2,75,11,065/- by treating the
same as business income otherwise claimed by the assessee as gain
accrued on disposal of shares chargeable to tax u/s 111A of the
Act, by following their own order passed in AY 2005-06.
10. The ld. AR for the assessee contended that the issue in
controversy is covered by the order passed by the coordinate
Bench of the Tribunal in ITA No.2863/Del/2010 for AY 2006-07
order dated 22.12.2015 in assessee's own case which fact has not
been controverted by the ld. DR for the Revenue by placing on
record material if the order relied upon by the ld. AR has been
overruled or lying challenged before the higher appellate authority.
11. Coordinate Bench of the Tribunal determined the issue in
controversy in favour of the assessee in assessee's own case in AY
2006-07 (supra) by returning following findings :-
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ITA No.3634/Del./2011
"25. Ground Nos. 1 and 2: Similar arguments have been
adopted by the parties as advanced by them hereinabove on the
issue of long term capital gain raised in the appeal preferred by
the Revenue. The authorities below have treated the claimed
short term capital gain of Rs.6,23,34,129 accrued on disposal of
shares invested for a short term period as business income. The
assessee had also claimed benefit under sec. 111A of the Act on
the said short term capital gain.
26. The assessee had furnished list of shares and the number of
scripts involved as 170. It had claimed short term capital gain of
Rs.6,71,16,180 and loss of Rs.47,82,051 thus the net gain was
claimed at Rs.6,23,34,129. The assessee had classified the gains
into long term and short term, after taking into consideration the
period of holding of shares. The Assessing Officer did not agree
with the claim of the assessee on the basis that the number of
shares and frequency of transactions were in the nature of
regular business activities. He held that assessee had done the
same with a motive to maximize the profits immediately rather
than holding them as investment. We do not agree with such
approach of the Assessing Officer as earning of maximum profit
is the object of the assessee in both type of transactions i.e.
investment and trade, hence, it cannot be a sole criteria to test the
nature of the transaction. If the assessee has sold a share within
a short term period after purchase but the intention of the
assessee behind the same remained investment still the gain will
be treated as short term capital gain. The contention of the
assessee remained that these shares were also purchased with
intention to invest therein details of which has been made
available at page No.142 to 146 of the paper book. In the details,
the period of holding has been shown less than or equal to sixty
days with all the other details as well as STT paid on the
transaction.
26.1 Both the Ld AO and learned CIT(A) have erred in treating
the income from sale of STT Paid listed equity shares from Short
term capital gains to business income. It can be seen that the
assessee is primarily an investor in shares. From the ratio of sale
of income from shares, 84% of the income is determined from
long term holding of STT paid listed equity shares. Only a small
component 15% of income from shares is treated as short term. A
look into the holding period of shares Appendix B would reveal
that out of 560 scripts, the transactions pertained only to 60- 65
scripts which were sold in at different times. 409 scripts out of
560 total scripts has a holding period of more than 60 days
having a short term capital gain of Rs 5.13 crores out of Rs
6.23crores, only Rs 1.09 crores were earned from 151 scripts
having a holding period of 15-60 days barring few which are
than 10 days. Thus, the Appellant states that when shares are
acquired after paying STT and taking complete delivery of shares
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ITA No.3634/Del./2011
keeping a long term in view as 84% of shares are held for more
than one year, transacting in some shares in short term to alter
its investment vision and goal cannot be considered as an action
borne out to do trade. It happens when the vision is long term,
some shares thought purchased are dropped out from portfolio
either because sufficient funds are not available to make them
reach to a level to accumulate capital or because of some other
allied reasons.
26.2 It is not the finding of the Assessing Officer or the Learned
CIT(Appeals) that these shares were shown as stock in trade or
the assessee was not correct in showing these shares as
investment. We thus do not find infirmity in the claim of the
assessee that the profit accrued on sale of these shares was short
term capital gain and the assessee was eligible for claiming
charging of the gain under the provisions laid down under sec.
111A of the Act. We thus while setting aside the orders of the
authorities below in this regard direct the Assessing Officer to
accept the claim of the assessee and allow the benefit of charging
of the gain under sec. 111A of the Act. The ground Nos. 1 and 2
are accordingly allowed."
12. Following the decision rendered by coordinate Bench of the
Tribunal for AY 2006-07 (supra) as per findings extracted herein
before, we are of the considered view that the assessee is entitled
for claiming/charging of gains under the provisions contained u/s
111A of the Act, consequently the issue is set aside to the AO to
accept the claim of the assessee by giving benefit of charging of
short term capital gain to tax u/s 111A of the Act after due
verification. Consequently, grounds no.1, 2, 3 & 4 are determined
in favour of the assessee.
GROUND NO.5
13. AO made addition of Rs.7,54,488/- on account of STT paid
on the ground that the assessee has not filed certificate from
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ITA No.3634/Del./2011
NSE/BSE in respect of STT paid and thereby denied the credit of
Rs.7,54,488/- to the assessee. The ld. CIT (A) confirmed the
addition by passing a cryptic order by returning following
findings:-
"28. Ground No.14 reads as under :
"The Ld. Addl. Commissioner of Income Tax erred in
making an addition of Rs.7,54,488/- on account of SIT
paid ignoring the fact the appellant already disallowed the
expense in its computation of income. Full arguments will
be advanced at the time hearing."
29. Vide this ground the assessee challenged the action of the
AO in adding back STT paid of Rs.7,54,488/-.
30. The AR filed detailed written submissions, in this regard
which are as under:
"Regarding SIT paid of Rs.754488/- it is to mention that
the Appellant itself added back the SIT paid amounting to
Rs.754488/-. Further adding back the same expense
which has already been added back in the income of the
appellant, is not correct, hence it requires deletion."
31. It is seen that while working out disallowance u/s 14A the
assessee has taken credit for STT paid. Hence, the addition of
Rs.7,54,488/- is upheld.
Accordingly, Ground No.14 is dismissed."
14. It is categoric case of the assessee that when the assessee
himself has added back the STT paid amounting to Rs.7,54,488/-
by disallowing the expenses in its computation of income, the
addition is not sustainable. But AO as well as ld. CIT (A) have
dealt with the issue without looking into the facts pleaded by the
assessee. So, the issue is set aside to the AO to decide accordingly
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ITA No.3634/Del./2011
in view of the stand taken by the assessee and on the basis of
computation of income filed by the assessee after providing
adequate opportunity of being heard to the assessee. Consequently,
Ground No.5 is determined in favour of the assessee for statistical
purposes.
15. Resultantly, the appeal filed by the assessee is allowed for
statistical purposes.
Order pronounced in open court on this 1st day of September, 2019.
Sd/- sd/-
(R.K. PANDA) (KULDIP SINGH)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated the 1st day of October, 2019
TS
Copy forwarded to:
1.Appellant
2.Respondent
3.CIT
4.CIT(A)-XIX, New Delhi.
5.CIT(ITAT), New Delhi. AR, ITAT
NEW DELHI.
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