KPMG Flash News 22 July 2011

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1 KPMG IN INDIA KPMG Flash News 22 July 2011 TAX In respect of shares held as investments, even gains on shares held for 30 days or less to be treated as short term capital gains and not business profits Recently, the Mumbai Bench of the Income-tax Appellate Tribunal (the Tribunal) in the case of Hitesh Satishchandra Doshi 1 (the taxpayer) held, based on the facts of that case, that where shares are held as investments, even gains from shares held for 30 days or less were to be considered as short term capital gains and not business profits. The Tribunal held that holding period of the securities could not be the sole criterion for determining whether the shares in question were held as capital asset or trading asset. The Tribunal also held that even though the Bombay Stock Exchange (BSE) and National Stock Exchange (NSE) were notified as Recognised Stock Exchanges with effect from 25 January 2006, any derivative transaction carried out on these exchanges from and after 1 April 2005 will not be speculative in nature [in view of amendment to Section 43(5) of the Income-tax Act, 1961 (the Act)]. I Gains on shares held for less than 30 days are treated as short term capital gains Facts of the case The taxpayer, an individual, was engaged in the business of share trading and investments. The taxpayer had also received income from interest and dividend income. The taxpayer made gains from sale of shares during the relevant year and showed gains from sale of one set of shares under the head 1 Hitesh Satishchandra Doshi v. JCIT (ITA No. 6497/Mum/2009, 6603/Mum/2009 & CO No. 239/Mum/2009 in ITA 3231/Mum/2009) 1

2 business income and the gains from sale of another set of shares under the head capital gains (long term as well as short term). Assessing Officer s order The Assessing Officer (AO) treated the capital gains as business income in view of the volume, regularity and turnover of transactions in shares. In this regard, the AO relied on the Central Board of Direct Taxes (CBDT) instruction 2, which laid down certain tests to determine whether the shares could be considered held as stock in trade or investments. In this regard, the AO found that the ratio of purchases to opening balances and that of sales to closing stock was indicative of the taxpayer being trader in shares. The AO held that the taxpayer is engaged in only one activity, that is, activity of earning profit through dealing in shares, within a short period or a long period. On that basis, the AO taxed the gains offered as capital gains (long term as well as short term) as the taxpayer s business income. Commissioner of Income-tax (Appeals) Order The Commissioner of Income-tax (Appeals) [CIT(A)] asked the taxpayer to bifurcate his statement of short term capital gains into two parts, shares sold within 30 days and after 30 days of their purchase. The CIT(A) accepted the gains classified as long term capital gains, as such. He also accepted the short term gains from sale of shares held for more than 30 days as such. However, he treated the short term gains/loss on shares held for less than 30 days as business income/loss. Issue before the Tribunal The taxpayer raised the question whether the surplus/loss earned from shares held for less than 30 days could be treated as business income/loss? Taxpayer s contentions The statute itself recognises a capital asset held for not more than 36 months/ 12 months as a short term asset, depending upon the nature of asset. The nature of the transaction capital gain or trading gain - is to be determined as per the intention of the taxpayer on the date of acquisition of the asset and not on the basis of subsequent events which lead to the sale of the asset. 2 Instruction no dated 31 August

3 The taxpayer had started investment in shares at least two to three years prior to the years under consideration. These shares were shown as investments in the books of accounts and had always been recorded at their cost and never at market value. The taxpayer was making these investments out of his own funds and not borrowed funds. Majority of the investments made were in the top 10 scrips. In spite of manifold increase in their market value, the taxpayer continued to hold these scrips rather than sell them off for profits. Further, there was a steady increase in the investment portfolio of the taxpayer. All of these factors demonstrated the taxpayer s intention to make and hold these investments. The investments were booked under a variety of scrips to avoid risk of over exposure of funds to fewer scrips. It is clear from CBDT circular 3 that it is possible for a taxpayer to simultaneously have two portfolios, that is, an investment portfolio and a trading portfolio. The taxpayer had been consistently showing income/ loss from sale of shares held as investment as capital gains/ loss. The revenue had always accepted such treatment except for the years under consideration. Given this position, it was not open for either the taxpayer or the tax department to start treating such shares as stock in trade, unless the taxpayer were specifically to convert such shares held as capital asset into stock in trade. Tax department s contentions The tax department contended that the large quantum and frequency of the transactions and the short period of holding of shares established that the taxpayer was engaged in the profit earning activity through dealing in shares in an organized way. In certain instances the shares were sold on the next day of purchase and were claimed as short term capital gains. The taxpayer had used borrowed funds for the purpose of purchase and sale of shares. Tribunal s ruling The statute has laid down the 12 month/ 36 month criteria for determining whether an asset could considered as long term or short term. The 30 days holding period criterion as was considered by the CIT(A), does not find place either in the statute or in any circulars/ instructions as well as any judicial pronouncements. 3 Circular no. 4 of 2007 dated 15 March

4 Holding period is only one of several criteria for determining the nature of the asset whether trading or investment. Some of the other important criteria as per the principles laid down by the various courts 4, which have also been considered by the CBDT in its circular no. 4/ 2007 dated 15 June 2007, are: intention of the taxpayer at the time of purchase, whether money has been borrowed for making purchase of shares, the frequency of purchase and sale in the particular item, whether the intention is to realise profits or to retain and gain from appreciation in value. No single criterion can be the determinative factor all the relevant factors are to be taken into account in this regard. Therefore, it was not proper for the CIT(A) to judge the transaction solely based on the holding period of the shares. The taxpayer was having own funds to the extent of 95 percent of the investment in shares. This made it clear that investments were not funded out of borrowed funds. The transactions in shares had taken place through electronic system of the stock exchange wherein a single order placed is split into numerous small transactions. This factor had led to an unrealistic picture of the number of transactions/ frequency. It is an accepted practice for an investor to reshuffle the investment portfolio by selling some scrips and buying others to mitigate the scope of loss of capital or income such activity is not to be considered as trading activity. That the taxpayer s investment portfolio largely comprised the top 10 scrips, the value of which increased substantially over the years, showed that the taxpayer was an investor in shares, which was a relevant fact also considered by the Tribunal in its own case of Mahendra C. Shah 5. The taxpayer had, over the years, been consistently maintaining two separate portfolios - one for investment and another for trading. This was the case even prior to change in the scheme of the law with the introduction of securities transaction tax (STT) effective 1 6 October The taxpayer had been consistently valuing his investments at cost and never based on market value. 4 The Tribunal has made specific references to the Apex Court s decisions in: CIT v. Associated Industrial Development Co Pvt Ltd. 82 ITR 586 (SC) CIT v. Holck Larsen 160 ITR 67 (SC) 5 Shri Mahendra C Shah v. ACIT (ITA No. 6289/Mum/2008 dated 18 May 2011) 6 Prior to introduction of STT, the long term capital gains from sale of shares on a recognized stock exchange in the case of an individual were taxable at a minimum base rate of 10 percent. Post introduction of STT, such gains have been exempted from income-tax. Prior to introduction of STT, the short term capital gains from sale of shares on a recognized stock exchange in the case of an individual were taxable at a maximum rate 4

5 All along, the tax department had accepted this consistent treatment followed by the taxpayer. Given that the capital gains offered in earlier years and investments shown in the balance sheet in earlier years were accepted as such by the tax department, and there being no change in facts, applying the principle of consistency, the tax department could not change the treatment given to the same transactions in the years in question. In this regard, the Tribunal applied the principle laid down in the case of Gopal Purohit by the Tribunal 7, which has also been confirmed by the Bombay High Court 8. Our comments This is yet another case where the Tribunal has followed the well settled principle that a number of factors have to be taken into consideration in their totality for determining the nature of transactions in securities whether investment or trading. These factors include, among others, the intention of the taxpayer at the time of purchase of shares, own funds or borrowed funds used for purchase of shares, frequency of purchases and sales, basis of classification and valuation in books of account as well as the holding period of the securities. The Tribunal has also observed that the 30 day holding period criterion, as was considered by the CIT(A), was not in accordance with the law, which provides a 12 month/ 36 month holding period criterion. In its ruling, the Tribunal has noted that while the taxpayer s investment portfolio increased substantially in value over the years, the portfolio continued to comprise more or less the same scrips. This factor also appears to have led the Tribunal to consider that the shares were in the nature of investments. II Derivative transactions carried out on BSE and NSE are not speculative from 1 April 2005 Facts of the case The taxpayer undertook transactions in derivatives during the financial year (1 April March 2006). He claimed business loss on account of such transactions. This loss was claimed in terms of section 43(5)(d) of the Act. Section 43(5)(d) of the Act was introduced with effect from financial year to allow business losses from derivative of 30 percent. Post introduction of STT, such gains became taxable at a base rate of 10 percent now increased to 15 percent. 7 Gopal Purohit v. JCIT [2009] 29 SOT 117 (MUM) 8 CIT v. Gopal Purohit [2010] 228 CTR 582 (BOM) 5

6 transactions carried out on recognized stock exchanges being characterized as not speculative in nature 9. Assessing Officer s order The law requires the recognized stock exchange (on which transactions in derivatives are carried out) to be notified for the purpose of section 43(5)(d) of the Act. The relevant notification no. 2/ 2006 (the notification) was issued on 25 January 2006 in terms of which the BSE and the NSE were notified as recognised stock exchange for this purpose. On that basis, the AO characterized the taxpayer s losses in derivatives in respect of transactions prior to 25 January 2006 as losses from speculative business He allowed losses from the derivative transactions from 25 January 2006 onwards nonspeculative business loss. Commissioner of Income-tax (Appeals) order The CIT(A) confirmed the views of the AO that losses from derivative transactions prior to 25 January 2006 were speculative in nature. Issue before the Tribunal Whether business loss from derivative transactions prior to 25 January 2006 be considered as speculative in nature? Tribunal s ruling The Tribunal relying on its own decisions 10 ruled on the effective date of the notification. The Tribunal observed that even though the notification was issued on 25 January 2006, it will apply from the effective date of amendment to Section 43(5) of the Act i.e. from 1 April Section 43(5) (d), introduced with effect from financial year provides that a transaction in respect of trading in derivatives carried out in a recognized stock exchange is a not speculative transaction. Under the rules relating to set off of losses, business losses from speculative transactions are a separate basket and cannot be set off from profits from non-speculative business. 10 The Tribunal has made specific references to the Mumbai Tribunal s decisions in: Prem Associates Advertising & Marketing (ITA No. 6547/Mum/2009 dated 17 September 2010) Nipra Financial Services Pvt. Ltd. (ITA No. 4605/M/2009 dated 30 September 2010) 11 In other words, the Tribunal held that from 1 April 2005 any derivative transaction carried out on BSE and NSE will not be treated as speculative in nature. 6

7 Bangalore Maruthi Infotech Centre, 11-12/1 Inner Ring Road Koramangala, Bangalore Phone: Fax: Chennai KPMG House No.10, Mahatma Gandhi Road, Nungambakkam High Road, Chennai Phone: Fax: Chandigarh SCO st Floor, Sector 8 C Madhya Marg Chandigarh Tel: Fax: Mumbai Lodha Excelus, Apollo mills compound, NM Joshi Marg, Mahalaxmi, Mumbai India Phone: Fax: Pune 703, 7th Floor Godrej Castlemaine, Next to Ruby Hall Clinic, Bund Garden Road, Pune Phone: /65 Fax: Kochi 4/F, Palal Towers, M. G. Road, Ravipuram, Kochi Phone: +91 (484) Fax: +91 (484) Delhi DLF Cyber City, Building no. 10, Block B, Phase II Gurgaon, Haryana Phone: Fax: Hyderabad KPMG, /2 Reliance Humsafar, 4th Floor Road No.11, Banjara Hills Hyderabad Phone: Fax: Kolkata KPMG Infinity Benchmark Plot No. G-1, 10th floor Block - EP & GP, Sector V, Salt Lake City Kolkata Phone: The information contained herein is of a general nature and is not intended to address the circumstances of 2011 KPMG, an Indian Partnership and a member firm any particular individual or entity. Although we endeavour to provide accurate and timely information, there of the KPMG network of independent member firms can be no guarantee 2011 that KPMG, such information an Indian Partnership is accurate as and of the a member date it is firm received of the or that KPMG it will network continue of to independent affiliated member with KPMG firms International affiliated with Cooperative ( KPMG be accurate in KPMG the future. International No one should Cooperative act on such ( KPMG information International ), without appropriate a Swiss professional entity. All rights advice reserved. International ), a Swiss entity. All rights reserved. after a thorough examination of the particular situation. 1

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