Case Law Details
ACIT Vs Shri Finance (ITAT Delhi)
Quantum or total number of transactions may not be determinative but in a given case, keeping in view the period of holding may indicate intention to make investment. We also find that CBDT Circular no. 6 dated 29.02.2016 also comes to the aid of the assessee wherein it has been clarified by the CBDT that where the assessee treats the securities as investment and not has stock-in-trade in earlier years, the revenue is not permitted a contrary view. It is evident from this Circular that CBDT has given instructions to the Assessing Officers to treat capital gains on listed shares and securities held for a period of more than 12 months as income from capital gains if the assessee so desires. The dismissal of the Special Leave Petition of the department by the Hon’ble Apex Court in the case of Pr. Commissioner of Income Tax vs. Bhanuprasad D. Trivedy (HUF) (SC) also comes to the aid of the assessee wherein the Hon’ble Apex Court upheld the Hon’ble High Court’s impugned order that intention of the assessee at the time of purchase of shares is paramount.
FULL TEXT OF THE ITAT JUDGMENT
This appeal has been preferred by the department against order dated 14.08.2014 passed by the Ld. Commissioner of Income Tax (Appeals) -XXVI, New Delhi for assessment year 2010-11 and the sole issue in dispute is whether the gain of Rs. 2,14,75,356/- from the sale of shares was to be assessed under capital gains or under business income .
2.0 Brief facts of the case are that the assessee is a partnership firm and derives income from investment activities. The return of income was filed declaring income of Rs. 19,96,804/- which included Short Term Capital Gains of Rs. 19,22,796/- and interest of Rs. 74,008/-. The Short Term Capital Gains were arrived at after claiming set off of brought forward short term capital loss of Rs. 19,53,229/- pertaining to assessment year 2007-08. The assessee had also claimed income of Rs. 1,75,54,960/- exempt under section 10(38) of the Income Tax Act, 1961 (herein after called as ‘the Act’) and dividend income of Rs. 26,36,252/- claimed as exempt u/s 10(34)/(35) of the Act. The Assessee also claimed carry forward of long term capital loss amounting to Rs. 41,247/-. The case was selected for scrutiny and during the course of scrutiny assessment proceedings, the AO formed the opinion that the share transactions entered into by the assessee were in the nature of business operations and not in the nature of investment as claimed by the assessee. Accordingly, the AO proceeded to assess the gains derived from the share trading as ‘business income’ as against ‘capital gains’ as claimed by the assessee. The assessment was completed at an income of Rs. 2,15,49,360/- wherein the long term capital gain of Rs. 1,75,54,960/- claimed as exempt u/s 10(38) and short term capital gains of Rs. 19,22,796/- were assessed as business income. The consequential effect was that the set off of short term capital loss of Rs. 19,53,229/- was also not allowed.
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To ADMN.
Do the 3 comments found posted ref. GST, by any chance, relate to the reported Order in re. – ACIT Vs Shri Finance (ITAT Delhi)?
The Tax Payers should have facility on GST portal so that they may file their GSTR-3B Returns with ITC available to them on due date at first. Secondly, Balance GST to be paid in Cash with interest may also be considered as facility to be given to the Tax Payers. During Pre-GST regime interest was charged only on Tax/duties paid in cash. There was facility to debit the Cenvat on last day of the month and interest was being collected or charged by the authorities on duties/tax paid in cash only. In my opinion, Section 50 should be amended accordingly..
Dear Sir,
ITC wrongly availed but not ustilised for any purpose of evading the tax, even after wrongly availement of ITC we have sufficient balance in Electronics Credit Ledger, is it attracts interest please guide in this regard.
There is no provision to make payment before filing GSTR-3B. This is a glitch in GSTN. Then how can they ask for this interest liability? It is not fare.