Shares PMS transaction gains are STCG and not business profits

ARA Trading ; Investments Pvt Ltd vs. DCIT (ITAT Pune)

Shares PMS transaction gains are STCG and not business profits

The assessee, engaged in investment in financial instruments, offered short-term capital gains (“STCG”) of Rs. 1.04 crores and LTCG of Rs. 12.57 lakhs. The bulk of the gains arose from a Portfolio Management Scheme (PMS) with ENAM AMC. The AO & CIT (A) assessed the entire gain as business income on the ground that (a) there were a large number of transactions, (b) the assessee had dealt with 5 brokers with 95% of the transactions being with ENAM AMC, (c) there was large volume of purchase and sales in 96 scrips, (d) the only receipts were from share transactions and expenses on bank charges, etc were charged there from. On appeal to the Tribunal, HELD allowing the appeal:

(i) Given the definitions of the term “business” and “capital asset” in s. 2(13) & 2(14), shares, if held for more than 12 months, will be a long-term capital asset, inspite of continued and systematic dealings;

(ii) On facts, as the assessee had engaged a portfolio manager to look after its’ investments and all decisions to buy and sell were taken by the portfolio manager and not by the asessee, the assessee cannot be called a “dealer”;

(iii) The object of the PMS was to maximize the value of the portfolio. It was “wealth maximization” and not “profit maximization”;

(iv) In the balance sheet, the shares were valued at cost and not at lower of cost or market value;

=============================================================================

Dear Friends : The emails are schedule to be posted in the blog and will sent to the group on carious dates and time fixed. Instead of sending it on one day it is spread on various dates. 

regards. R R Makwana

=============================================================================

ITAT (PUNE) : -AO directed to pay costs for “Recovery Harassment"

Shramjivi Nagari Sahakari Pat Sanstha vs. ACIT (ITAT Pune)

*AO directed to pay costs for “recovery harassment”

The assessee, a credit co-operative society, contravened s. 269SS & 269T because of which penalty u/s 271E was levied. The CIT(A) confirmed the levy of penalty. *Before service of the CIT(A)’s order, the assessee’s bank account was attached u/s 226(3)*. The assessee filed a stay application and claimed that as the assessee had to bear costs owing to the illegal action of the AO, costs had to be awarded to it. HELD upholding the assessee’s plea: