Case Law Details
Backdrop:- Characterization of income earned from sale of shares has generally been a matter where divergent positions have been taken by taxpayers and the Assessing Officers (AOs). Recently, the Mumbai Income-tax Appellate Tribunal (Tribunal) has delivered two decisions on this issue. These two decisions provide a fair idea of the parameters which are considered by the judicial authorities to decide the characterization of income from sale of shares.
Issue before Tribunal
In both cases before the Tribunal, the same issue was involved: whether the gains from sale of shares are to be assessed as capital gains as declared by the taxpayer in its return of income or business income as assessed by the AO?
Observations and Ruling of the Tribunal
After considering the various judicial precedents and Circular no. 4/2007 dated 15 June 2007 issued by the Central Board of Direct Taxes, the Mumbai Tribunal has held that the income from sale of shares earned by the taxpayer is to be assessed as capital gains in the case of Management Structure & Systems Pvt. Ltd and as business income in the case of Smt. Sadhana Nabera.
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The comparison given by the Tribunal can be applied where a person is having a business and also has got dealings in shares. But what about the situation of an individual, say an employed having an interest in shares. Whether it is a capital gain or business income, is not answered in any forum clearly.
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The writer of the topic “CHARACTERIZATION OF INCOME FROM SALE OF SHARES” I guess has a deep knowledge of Income Tax Law and he has simplified way of presentation wherein even lay man or a common man doing share transaction can get knowledge about capital gain and Business income for share dealing activities,
Thanks for your pains to describe and elaborate the above subject in simple language.
ashok Patel
That the assessee was not a broker helped the assessee. But is is well known that a broker can be an investor too. Many ITAT judgements are in order : Motilal Oswal, Sunder Iyer, R.K.Dhawan, J.M.Share Brokers P Ltd are some of them. Even celebrated Gopal Purohit was a trading assistant of a broker. What is important is intention and the conduct to prove the intention, not the profession of the assessee.
Very clear presentation of details of these two cases, to bring out the differences. Thanks.