INDO STOSEC PRIVATE LIMITED Vs. INCOME TAX OFFICER
INCOME TAX APPELLATE TRIBUNAL
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B.R.Baskaran, Member (A) -
(1.) THE appeal of the assessee is directed against the order dated 25 -03 -2010 passed by Ld. CIT(A) -9, Mumbai and it relates to the assessment year 2006 -07.
(2.) THE first issue contested by the assessee relates to the assessment of gain arising on sale of shares. The facts relating thereto are state in brief. The assessee is engaged in the business of manufacture of Gas mantle and stove. Besides the assessee was also engaged in trading of shares and it has show the shares on hand as its "stock in trade" in the earlier years. As on the beginning of the current year, i.e., on 1.4.2005, the assessee transferred the Shares from "Stock in trade" to "Investment" account. Immediately thereafter, the assessee sold shares, the details of which are furnished at page 83 of the paper book. From the said statement, we notice that the assessee sold shares on 05.04.2005, 19 -04 -2005, 20 -04 -2005 and 26 -04 -2005. Since the assessee had classified the shares as "Investments" as on 01.04.2005, the assessee computed Long term Capital gain of Rs. 28,33,476/ - and Short term Capital gain of Rs. 79,094/ - for income tax purposes. The assessee claimed the long term capital gain as exempt u/s. 10(38) of the Act and paid tax on Short term Capital gains at concessional rate u/s. 111A of the Act. In the assessment proceedings, the AO did not recognize the conversion of Stock in trade into Investments by holding that the change of method of accounting was effected with a view to reduce the tax liability and also to claim exemption u/s. 10(38) of the Act. Accordingly, the assessing officer assessed the gains arising on sale of shares as business income of the assessee. The Ld. CIT(A) also confirmed the same. The Ld. Counsel appearing on behalf of the assessee submitted that the assessee has been holding the shares for quiet a long period of time. Referring to the statement placed in page 83 of the paper book, the Ld. A.R. submitted that some of the shares are held prior to 1.1.2000 also. Accordingly he contended that the intention of the assessee should be inferred from the period of holding the shares. He submitted that though the assessee had classified these shares as 'stock in trade' in its books of account, the same is not decisive. In this regard, he placed reliance on the decision of Hon'ble Supreme Court rendered in the case of Investment Ltd. Vs. CIT : (77 ITR 533). He submitted that the intention of the assessee should be gathered from the facts surrounding the issue. He further submitted that the assessee has converted the shares as its "investments" in the books of account so as to reflect its intentions. The Ld. A.R. placed reliance on the order dated 22 -10 -2013 passed by Hon'ble Delhi High Court in the case of CIT Vs. M/s. Express Securities Pvt. Ltd. and submitted that the Hon'ble Delhi High Court, in the above cited case, has held that the assessee is entitled to convert the stock in trade into investments on noticing the benefit of exemption provided u/s. 10(38) of the Act. He further submitted that the assessee sold the shares, since they were fetching good prices. Accordingly, he contended that the tax authorities are not justified in rejecting the explanations of the assessee. The Ld. A.R. further submitted that the CBDT has prescribed various criterion to be examined to ascertain the nature of transaction. He submitted that the assessee is satisfying most of the tests prescribed by the CBDT. However, the Ld. CIT(A) has confirmed the order of the AO without examining all the test criterias. Accordingly he prayed that the matter may be set aside to the file of the Ld. CIT(A) for considering the matter afresh.
(3.) ON the contrary, the Ld. D.R. submitted that the assessee was indulging in trading of shares in the earlier years also and the assessee had offered the gains realized on sale of shares as business income only. Inviting our attention to the financial statements relating to the earlier years, the Ld. D.R. submitted that the assessee has been consistently declaring the Shares as its Stock -in -trade only. He further submitted that the assessee has converted the stock in trade into investments only in the current year and immediately sold the shares after such conversion. Accordingly, the Ld. D.R. submitted that the assessee has entertained the idea of conversion, only to avail the exemption u/s. 10(38) of the Act and also to avail concessional rate of tax in respect of short term capital gains. Accordingly he contended that the order of Ld. CIT(A) passed on this issue should be sustained.;
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