Sanjeev Mittal vs Commissioner Of Income Tax
2015 Latest Caselaw 898 Del

$~24
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Decided on: 02nd February, 2015
+       ITA 520/2014

        SANJEEV MITTAL                                 ..... Appellant
                     Through           Dr. Rakesh Gupta and Mr. Mukul
                                       Mathur, Advs.
                           versus

        COMMISSIONER OF INCOME TAX            ..... Respondent

Through Mr. Rohit Madan and Mr. Ruchir Bhatia, Advs.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE R.K.GAUBA

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%

1. The assessee is aggrieved by the order of the Income Tax Appellate Tribunal (hereinafter referred to as "the ITAT") to the extent that it remitted the case for reconsideration by the Assessing Officer (AO) on the assumption that additional evidence had been filed, or was sought to be led by the assessee. The question sought to be urged is whether in the circumstances of the case the nature of the remand ought to have been limited, given that the CIT(Appeals) considered all materials on record and held that the sum of ₹1,97,17,460/-, reported during assessment year 2007- 08, constituted capital gains.

2. The assessee concededly is a medical practitioner. He reported ₹1,39,097/-, as his professional income in his returns. The AO noticed that

ITA No.520 /2014 Page 1 professional receipts of the appellant amounted to ₹7,49,500/-. This was a mere 1/37th of the gains from transactions in shares. Before the AO, the appellant contended that the said amount of ₹1,97,17,460/- constituted capital gain and could not be treated as professional or business income. The assessee's primary submission was that in the concerned assessment year, 57 transactions recording sale of shares of various companies held by him, for periods ranging from 366 days to over 1150 days were involved. Consequently, given the settled position in law on the question of whether the income was a capital account or a business income, it had to be treated as capital gain. The AO however rejected this contention and treated the entire amount as business income, thus applying a higher rate of tax. The assessee's appeal to the CIT(Appeals) succeeded. The CIT(Appeals) pertinently held as follows :

"That the appellant made investments in shares in last several years and he was lucky enough amongst millions that he sold his investments when the sensex was at fire. During the year under assessment the appellant earned LTCG of Rs.1.98 crores i.e. about 71%, of the total gain and STCG of Rs. 0.80 crore i.e. about 29% of the total gain.

That while earning LTCG more than 74% of the shares were held for more than 18 months and in 11% cases shares were held for more than 36 months. Moreover 69% of the LTCG was earned on account of bonus and split shares being received against original investments.

Sir, it could have been well appreciated by the learned AO from the records made available before him that the appellant had consistently been declaring income in past and future years under the head LTCG/ STCG and also consistently reflecting the impugned investments in the financial statements under the head 'Investments' and valuing the same at 'cost price' unlike on 'cost price or market price which ever is less' as is done by a trader as, also mandated by

ITA No.520 /2014 Page 2 the Accounting Standard released by the accounting apex body lCAI.

Ex.-2-Some examples inter-alia of major scripts being bought and sold where the appellant earned LTCG of Rs.1,97,93,968/- during the year and where the holding period was up to 1,151 days:-

Sl   Scripts                Dt           Cost      Nos     Dt Sale      Sale      LTCG      Days
                            Purchase                                    Price
1    Thermax Ltd.           10/13/2003   33083     500     12/7/2006    190055    156972    1151
2    Thermax Ltd.           11/13/2003   112151    1695    12/19/2006   629698    517547    1132
3    BEL                    3/10/2003    385000    1000    4/12/2006    1347010   962010    1129
4    Thermax Ltd.           11/17/2003   155496    2305    12/19/2006   856316    700820    1128
5    Havell's       India   10/22/2003   99923     1125    11/7/2006    343411    243488    1112
     Ltd.
6    Havell's       India   10/22/2003   15544     175     11/7/2006    53288     37744     1112
     Ltd.
7    Indian Rayon           7/11/2003    141430    1000    6/13/2006    552201    410771    1068
8    Crompton               11/25/2003   14121     500     10/3/2006    121118    106997    1043
     Greaves
9    Crompton               11/25/2003   70604     2500    9/18/2006    560140    489536    1028
     Greaves
10   KPIT Cummins           12/2/2003    2599989   2000    8/4/2006     770800    510811    976
11   Crompton               11/25/2003   42363     300     6/12/2006    241799    199436    930
     Greaves
12   Hindustan Cons         9/17/2004    191292    10000   3/5/2007     950000    758708    899
13   Crompton               10/17/2003   67831     500     4/1/2006     525000    457169    897
     Greaves
14   Jindal Steel           7/29/2004    272000    50      1/11/2007    1059612   787612    896
15   Crompton               11/25/2003   70604     500     4/1/2006     525000    454396    858
     Greaves
16   Havell's       India   8/20/2004    142420    1000    11/7/2006    307891    165471    809
     Ltd.
17   IVRCL Infra            10/20/2004   94279     1875    11/7/2006    641244    546965    748
18   Jindal Steel           7/28/2004    281365    500     8/8/2006     733068    451703    746
19   Kalataru Power         3/16/2005    96847     200     2/28/2007    219071    122224    714
20   Kalataru Power         3/23/2005    231169    500     3/5/2007     497625    266456    712
21   IVRCL Infra            5/3/2005     87136     1000    3/5/2007     276043    188907    671




ITA No.520 /2014                                                                           Page 3
 22   Simplex Const.      5/2/2005     50481    490    2/27/2007    168007    117526     666
23   IVRCL Infra         5/3/2005     130704   1500   2/26/2007    511282    380578     664
24   EID Parry India     10/12/2004   131731   2000   8/4/2006     389100    256369     661
25   IVRCL Infra         5/3/2005     130704   1500   2/15/2007    570995    440291     653
26   EID Parry India     11/4/2004    72961    1000   8/4/2006     194550    121589     638
27   Simplex Const.      6/23/2005    101869   770    3/5/2007     225211    123342     620
28   Havell's    India   8/8/2005     0        2800   3/29/2007    1256569   1256569    598
     Ltd.
29   IVRCL Infra         5/3/2005     87136    1000   12/18/2006   398684    311548     594
30   KEC                 9/3/2004     83510    1000   4/19/2006    405490    321980     593
     International
31   KEC                 9/3/2004     83509    1000   4/18/2006    407700    324191     592
32   Kalataru Power      3/16/2005    145270   300    10/21/2006   246002    100732     584
33   Kalataru Power      3/4/2005     117311   300    9/25/2006    231326    114015     570
34   IVRCL Infra         10/20/2004   100564   2000   4/28/2006    566722    4666158    555
35   IVRCL Infra         10/20/2004   25141    500    4/25/2006    152681    127540     552
36   IVRCL Infra         10/8/2004    111301   2500   4/12/2006    799690    688389     551
37   EID Parry India     11/5/2004    71314    1000   4/25/2006    305726    234412     536
38   Havell's    India   8/8/2005     0        1200   1/15/2007    573718    573718     525
     Ltd.
39   Hindustan Cons.     3/28/2005    87767    2000   8/24/2006    214400    126633     514
40   Simplex Const.      4/15/2005    97192    200    9/9/2006     364880    267688     512
41   Ashapura Mine       3/23/2005    162453   2000   8/4/2006     386800    224347     499
42   Simplex Const.      5/2/2005     51511    100    9/11/2006    186137    134626     497
43   Ashapura Mine       3/16/2005    7995     1000   6/28/2006    182670    102675     469
44   Ashapura Mine       3/16/2005    79995    1000   6/27/2006    181839    101844     468
45   Ashapura Mine       7/6/2005     92028    1005   10/17/2006   205216    113138     468
46   Ashapura Mine       7/7/2005     89887    990    10/17/2006   202153    112266     467
47   Hindustan Cons.     3/28/2005    131652   3000   6/15/2006    504603    372951     444
48   Ansal Properties    12/7/2005    263482   1500   2/23/2007    853421    589939     443
49   Simplex Const.      4/12/2005    51498    102    6/9/2006     158085    106587     423
50   Simplex Const.      4/7/2005     48201    92     5/19/2006    201305    153104     407
51   Ashapura Mine       3/4/2005     70132    765    4/5/2006     189865    119733     397
52   Titan Industries    9/23/2005    239538   500    10/23/2006   395379    155841     395
53   Ansal Properties    12/6/2005    41303    250    12/7/2006    265717    224414     366




ITA No.520 /2014                                                                       Page 4
                                                       Total        17,401,526

3. Likewise the CIT(Appeals) noted that even though certain loans had been availed from banks and private sources - the materials on record did not suggest any link between the acquisition of shares, which were ultimately sold, and the availing of such credit. The CIT(Appeals) pertinently noticed that "It may be worth noting, however, that all the gains resulted during the year in question were from the holdings of the prior period when the credit line from the bankers were started availing by the appellant. Moreover, the interest paid on loans was neither claimed as an expense against LTCG/STCG nor against professional income."

4. The CIT(Appeals) also concluded that apart from the shares, he was holding properties of substantial value, had given loans, to family members to the extent of ₹78.99 lakhs as on 31.03.2007, as against secured loans of ₹2 crores, and secured loans by banks upto ₹39.75 lakhs as on that date. Consequently, the CIT(Appeals) concluded that loans against securities were used for multifarious purposes. In these circumstances, applying the ratio in Ramnarain Sons (P.)Ltd. v. CIT [1961] 41 ITR 534, the dominant intention of availing the loans was not for the purpose of share purchase.

5. Thus applying the well-settled principle that the intention of the assessee is to be discovered from various angles such as the expenditure, length of holding, volume, and frequency of share sale and purchase transaction, whether the shares were acquired through borrowed funds or funds of the assessee, and whether separate accounts were maintained for

ITA No.520 /2014 Page 5 the purpose and the duration of holding, the CIT (Appeals) concluded that the assessee's contentions were acceptable.

6. The CIT (Appeals) however said as follows :

"2.10 The appellant was asked to clarify whether any additional evidence has been filed during appellate proceedings. Vide submissions dated 14.2.11, the appellant has clarified that no additional evidence has been filed during appellate proceedings.

DETERMINATION

2.11 The submissions of the appellant and the facts have been carefully considered. Various judicial decisions on this subject including those cited by the appellant have also been perused. These decisions lay down principles on the basis of which, it has to be decided whether income from shares is to taxed under the head capital gains or under the business head. No single criterion is decisive but a holistic consideration of all the factors is required. In the light of principles laid down in these decisions, it is clear that in this case, the AO's decision to tax income from shares under the business head and not under the head capital gains, is not legally tenable."

7. Having regard to the elaborate discussion, the CIT (Appeals) consequently concluded that the department's contention that the amounts ought to be treated as business income was meritless in the following terms :

"2.1 Ground no. 1 challenges the addition of Rs. 2,77,96,322/- on account of considering STCG and LTCG of Rs. 80,02,356/- and Rs.

1,97,93,968/- as business income. In the astt. order, the A.O. has stated that the appellant is a doctor by profession and has been engaged in the business of buying and selling of shares. The professional receipts of the appellant amount to merely Rs.7,49,500/-. On inquiry about the reasons of low professional income, the appellant explained that the nature of his specialization does not call for much of OPD practice. The A.O. has observed

ITA No.520 /2014 Page 6 that the appellant does not have much of a practice and consequently he is engaged in share trading on a regular basis. The A.O. has observed that during the year, the assessee had carried on in a systematic and organized manner, numerous transactions of buying and sale of shares, which constitutes his business activities. The A.O. has referred to the chart containing the capital gain statement submitted by the assessee during assessment proceedings and has observed that this clearly indicates that the assessee carried out a large number of transactions with huge volumes and some of the transactions are completed in a very short period. The A.O. observed that this clearly indicates that the motive of the assessee while buying and selling these shares was to earn profit. The A.O. held that these frequent transactions carried out by the assessee are in the nature of business activities and not capital investment as claimed by him. Accordingly, the profits arising from purchase and sale of shares were treated as profit from business and not as capital gains."

8. The ITAT felt that there was no clarity as to whether additional evidence had been produced during the course of CIT(Appeals)'s proceeding. The ITAT thereafter recorded its findings upsetting the Appellate Commissioner's order in the following terms :

8.1 As regards the merits of the case, we find that before the Ld. CIT(A), assessee has made elaborate submissions running from pages 4 of the Ld. CIT(A)'s order to pages 36 out of the total 44 pages CIT(A)'s order. In these submissions, there are various charts also submitted. In this regard, we note that from the reading of the AO's order and the appellate order, it is not clear whether the detailed submissions and charts produced before the Ld.

CIT(A) were also submitted before the AO. In this regard, Ld. CIT (A) himself has doubted in Para 2.10 of his order. Ld. CIT(A) has noted that assessee was asked to clarify whether any additional evidence has been filed during appellate proceedings. Ld. CIT(A) accepted the assessee's submissions that no additional evidence were filed. Thus Ld. CIT(A) without verifying from the AO, has accepted that additional evidence were furnished during the

ITA No.520 /2014 Page 7 appellate proceedings. In our considered opinion on the facts and circumstances of the case, AO should have been given an opportunity to go through the submissions before the Ld. CIT(A) and given a report.

8.2 As regards, the merits of the case, we note that Ld. CIT(A) has produced the assessee's submission in his whole order and then in few pages he has noted down briefly the assessee's submission in his own order. Thereafter, Ld. CIT(A) has allowed assessee's appeal. Ld. CIT(A) has not given any finding himself on the submissions of the assessee. In these circumstances, the Ld. CIT(A) order cannot be said to be a speaking order showing proper application. In our considered opinion, on the facts and circumstances of the case, interest of justice will be served if the matter is remitted to the file of the AO. The AO is directed to consider the issue afresh. Needless to add that the assessee should be granted adequate opportunity of being heard.

9. The appellant's counsel urged that all material was produced in the course of the assessment proceedings. He highlighted the fact that of all the share transactions which yielded substantial income, 69% was on account of sale of bonus shares and split shares. Counsel highlighted the CIT (Appeals)'s orders to show that the shares in question were held for a considerable long period ranging from about a year to 1150 days. In fact, it was submitted that the CIT (Appeals) took note of the fact that 11% of the shares were held for more than 36 months and 74% of the shares were held for more than 18 months. Furthermore, given that there was no linkage between the borrowings and the amounts used for acquisition of shares, the confusion in the ITAT's findings stemmed from its mis-appreciation of the facts.

10. Learned counsel for the revenue urged that the AO had also taken note of the previous year's assessments, which had, in turn, noticed that

ITA No.520 /2014 Page 8 amounts towards capital gains had been reported. This, according to counsel, supported the AO's findings for this year that the appellant's primary activity was not medical practice but share trading. It was also urged that given the dis-proportionate ratio between the medical earnings and the share transactions earnings, the findings of the AO should not have been interfered with, and in these circumstance, the remand directed by the ITAT in the widest terms has to be upheld.

11. This Court has considered the submissions. The record itself would show that the CIT(Appeals) painstakingly looked into the nature of transactions and apparently analysed each one of them to conclude that the income derived from sale of shares was not business income but capital gains. In arriving at this decision, the CIT(Appeals) was guided by several binding decisions, such as CIT V. Associated Industrial Development Company (P) Ltd. (1971) 82 ITR 586 (SC), Raja Bahadur Kamakhya Narayan Singh V. CIT (1970) 77 ITR 253 (SC) and CIT V. Holck Larsen (1987) 160 ITR 67 (SC) etc. In fact the order of the CIT (Appeals) with respect to analysis of the facts covers a considerable part of the order.

12. Likewise the analysis of case law and the inference is drawn on the basis of its application run into over 30 pages. The contentions noted by the CIT (Appeals) are at para 2.11 and its findings ultimately favouring the assessee are at para 2.14. The ITAT apparently was mistaken in its assumption that some additional evidence was led before the CIT (Appeals). In fact, the order of the CIT (Appeals), in para 2.10 clearly records that the appellant had clarified that no additional evidence was filed during the appellate proceedings. Furthermore, a comparison of the details of the share

ITA No.520 /2014 Page 9 transactions in question from the AO's order and the CIT (Appeals) order would show that there is complete identity as to the details of the transactions i.e. the name of the companies, the duration of holding, date of purchase, date of sale etc. In fact, CIT (Appeals)'s order is a more elaborate analysis of some basic material. Furthermore, it was not pointed out during the course of the hearing as to what was the additional material or evidence reiterated before the CIT (Appeals) by the assessee, which necessitated the remand. In these circumstances, the Court is of the opinion that present appeal has to succeed. However, we notice that the CIT (Appeals) had recorded that 29% of the transactions reported by the assessee could be treated as short term capital gain. In these circumstances, the remand directed by the ITAT is limited to enquiry on this aspect. The rights and contentions of the parties on this question are reserved. The AO shall proceed to deal with and decide as to which shares are to be treated as short term capital gain, for the purposes of directions contained in this judgment in accordance with law. Consequently, the appeal is allowed in the above terms.

S. RAVINDRA BHAT (JUDGE)

R.K.GAUBA (JUDGE) FEBRUARY 02, 2015 vld

ITA No.520 /2014 Page 10