Fortis to buy 23.9 per cent stake in Singapore's Parkway Employment of washing process in the manufacture of agglomerates etc from imported plastic waste and scrap-SEZ Instruction No.48 Government bans Fashion TV for 9 days for showing hot programs Mexican billionaire Carlos Slim ranked the richest person in the world with USD 53.5 billion in assets, followed by Bill Gates and Warren Buffet-Mukesh Ambani ranks fourth with USD 29 billion and Lakshmi Mittal fifth in Forbes list of world's top billionaires Haryana Government imposes surcharge ranging from 0.25 per cent to 0.7 per cent on VAT Khaitan & Co boosts Real Estate Practice-Ex IAS Officer Dr PK Agarwal joins Khaitan & Co as Partner Real Estate Practice in Delhi Service Tax Notification No. 17/2010 which exempts the taxable service providing packaged or canned software, intended for single use and packed accordingly amended-Service Tax Notification No.18 Procurement, Import and Export of Prohibited and Restricted Goods by SEZ Units-SEZ Instruction No. 47 Tractors are chargeable to tractor cess in terms of the Tractor Cess Rules, 1992 read with the IDRA Act, 1951-Central Excise Circular No. 916 Authority for Advance Ruling rules the amounts received/receivable by Technopromexport from NTPC under contract for Offshore supply of all plant and equipment including mandatory spares are not liable to tax in India under the provisions of the Income-tax Act, 1961 and DTAA between India and Russia-AIT-2010-79-AAR whether Cess levied under section 5 of Textile Committees Act, 1963 is includable as a component of CVD-AIT-2010-78-HC Export warehousing –Extension of facility at Gautam Budh Nagar in UP and Nagpur in Maharashtra-Central Excise Circular No. 917 Implementation of the provisions of COTP Act, 2003 and The Cigarettes and Other Tobacco Products (Packaging and Labelling) Rules, 2008- Empowering the Customs & Central Excise Officers-Central Excise Circular No. 918 Toilet linen and kitchen linen, of terry toweling or similar terry fabric, of cotton and of other textile materials added in Focus Product Scheme for exports made after 1st Jan 2010-DGFT PN 46 TDS on payment of interest on time deposits under Section 194A of the Income Tax Act by banks following Core-Branch Banking Solutions software-Income Tax Circular No.3 Tariff value for import of Brass scrap is 3732 and for poppy seeds 4640-Customs Non-Tariff Notification No.19 Duty Credit Scrips can also be used / debited towards payment of Customs Duties in case of EO defaults under Authorizations issued under Chapters 4 and 5 of the Policy-DGFT Notification No.32 SC Ruling-the nature of roll over premium charge incurred by the assessee as also the scope and applicability of Section 43A of the Income Tax Act, 1961, in the context of such charges-we find no merit in the contention of the assessee that roll over charges have nothing to do with the fluctuation in the rate of exchange-AIT-2010-75-SC Pre-authentication of excise invoices dispensed with Excise duty on Goggles and OTS cans hiked to 10 per cent av gas and mosquito net impregnated with insecticides subjected to 4 per cent excise Outright exemption from additional duty of customs (of 4%) leviable under sub-section (5) of section 3 of the Customs Tariff Act, 1975 to goods imported in a pre-packaged form and intended for retail sale Benefit of allowing Cenvat credit to be reversed on proportionate basis (when common inputs are used for the manufacture of dutiable and exempt products) extended retrospectively Bad News for flat bookers-unless the entire consideration for the property is paid after the completion of construction (i.e. after issuance of completion certificate by the competent authority), the activity of construction would be deemed to be a taxable service provided by the builder/promoter/developer to the prospective buyer and the service tax would be charged accordingly Bad News for ladies-sanitary napkins & kids diapers subjected to 10 per cent excise excise duty @ 4% imposed on specified IT products like microprocessor other than motherboards, floppy disc drives, CD-Rom drive etc when these items are meant for external use with a computer or laptop as a plug-in device Packaged software or canned software exempted from excise excise duty on Cartons, boxes and cases, of corrugated paper or paperboard manufactured by Standalone manufacturers lowered from 8% to 4% all ceramic tiles, whether manufactured by using electricity for firing the kiln or not, will attract a single excise duty rate of 10% process of drawing or redrawing of aluminium tubes and pipes as amounting to " manufacture" Excise duty on replaceable kits of all domestic water filters except those operating on RO technology reduced from 8% to 4% Excise duty exemption on parts, components and accessories of mobile handsets including cellular phones extended to parts of two accessories namely, battery chargers and hands-free headphones of these devices.

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Holding Shares as investment not stock-in-trade

AIT News Network

MUMBAI. Vide a recent significant ruling AIT-2007-26-ITAT; the Income Tax Tribunal has ruled that there is no basis for treating the assessee as a Trader in shares, when his intention was to hold the shares in Indian companies as an investment and not as stock in Trade.

The assessee raised the grounds of appeal that on the facts and in the circumstances of the case, the Ld. CIT (A) legally erred in confirming the action of the Assessing Officer in not allowing the set off of long term capital loss of Rs.1,02,31,691/- against the short term capital gains of Rs.1,47,15,196/- and in the alternative, the Ld. CIT (A) legally erred in confirming the action of the Assessing Officer in treating the short term capital gains of Rs.1,47,15,196/- as profit from share trading business and on the facts and in the circumstances of the case, the Ld. CIT (A) legally erred in not giving relief in respect of alternative plea of the appellant that the learned Assessing Officer ought to have applied the ratio of the appellant being held as trader in respect of the activities in the purchase and sale of shares carried on by the appellant.In other words, the learned Assessing Officer ought not have held the appellant partially as trader and partially as investor.

The assessee was in the business of Trading of Import and Export of Dyes & Chemicals and having turnover of about Rs.6,34,00,000/-. For the purpose of carrying of his business of Trading / Export of Dyes & Chemicals, the assessee was maintaining full-fledged office infrastructure. The books of accounts were audited. In addition, the assessee was also investing in shares of various companies, wherein the income from Long Term Capital Gains, Short Term Capital Gains and speculative Gain/Loss is being shown by the assessee from year to year. It was the claim of the assessee that all the holdings in shares of Indian companies from year to year is reflected as investment in the Balance Sheet of the assessee.

According to the AO the assessee was a Trader in Shares and not an Investor in shares.

T H E R U L I N G :

The assessee had earned income from Short Term Capital Gains amounting to Rs.1,47,15,196/- on sale of shares in the year under consideration, which was claimed to be adjusted against Long Term Capital Loss. The assessee has also declared income from speculation gains / loss which are on account of sale and purchase of shares without delivery of the shares. During the year under consideration, the assessee had also claimed Long Term Capital Loss of Rs.1,02,31,691/- on sale of shares which were held by the assessee as investment and duly reflected in his Balance Sheet as investment. Similar transaction of sale and purchase of shares are being carried out by the assessee in preceding years, details of which have been filed on record. In addition to the Capital Gains received from Sales of Shares the assessee had declared income from dividend received from the said shares being held as investment by the assessee. The mere volume of transaction transacted by the assessee would not alter the nature of transaction. It is an established principle that income is to be computed with regard to the transaction. The transaction in whole has to be taken into consideration and the magnitude of the transaction does not alter the nature of transaction. Though the principle of Res Judicata does not apply to the Income Tax Proceedings as each year is an independent year of the assessment but in order to maintain consistency, it is a judicially accepted principle that same view should be adopted for the subsequent years, unless there is a material change in the facts.

The assessee is holding the shares as investment from year to year. It is the intention of the assessee which is to be seen to determine the nature of transaction conducted by the assessee. Though the investment in shares is on a large magnitude but the same shall not decide the nature of transaction. Similar transactions of sale and purchase of share in the preceding years have been held to be Income from Capital Gains both on Long Term and Short Term basis. The transaction in the year under consideration on account of sale and purchase of shares is same as in the preceding years and the same merits to be accepted as Short Term Capital Gains. There is no basis for treating the assessee as a Trader in shares, when his intention was to hold the shares in Indian companies as an investment and not as stock in Trade. The mere magnitude of the transaction does not change the nature of transaction, which are being assessed as Income from Capital Gains in the past several years. The AO is directed to set off the Long Term Capital Loss against the Short Term Capital gain of the year under consideration.

( Click here for full text of ruling AIT-2007-26-ITAT)