Time and again there has been a debate on whether transactions of purchase and sale of shares are to be considered as business transactions or investment transactions. The significance of this distinction is that sale of investments gives rise to capital gains/loss while sale of stock in trade gives rise to business income. The former is eligible for several concessions for tax purposes in India as compared to the latter. The tax authorities are therefore, generally taking a view in a large number of cases, where the volume or frequency of transactions is large, that the same should be considered as a business of trading in shares instead of as investment activity. On the other hand, the concerned tax payer would naturally want to get the gains from such transactions to be treated as capital gains and thereby pay lesser or no tax.
There are a plethora of appellate and judicial decisions on this issue which are fact-specific in nature. A recent decision of the Pune Bench of the Income-tax Appellate Tribunal (ITAT) in the cases of KRA Holding & Trading Pvt. Ltd., Pune Vs DCIT (ITA 500/PN/08) and ARA Trading and Investments Pvt. Ltd., Pune Vs DCIT (ITA No. 499/PN/2008) has brought out certain interesting arguments that were put forward by the respective tax payers in order to defend their claim that investments made under a Portfolio Management Scheme (PMS) did not constitute a business of trading in shares despite the large volume and frequent churning of the portfolio. This tax alert brings to you the highlights of the decision of the ITAT. It may be noted that since the facts in both appeals were identical, the ITAT has, for the sake of convenience, referred only to facts relating to KRA Holding & Trading Pvt Ltd and has mentioned in the order that the decision would hold good for both appeals.
Facts in the case of KRA Holding & Trading Pvt Ltd:
The assessee is an investment company holding 18% shares of Thermax Ltd from 1995to 2004 and from which it had earned dividend income of Rs. 180 Million.From those amounts, the company had invested in shares acquired from the secondary market.For acquiring these shares, the company had entrusted substantial funds to five portfolio managers. The portfolio managers were granted sole discretion in respect of making investments. However, they were not allowed to enter into speculative transactions or to settle any transaction without giving/taking delivery of the shares. Out of the five portfolio managers, most of the transactions were carried out only through one of them. In its books of account as well as in its tax return, the company treated the gains/losses from its various portfolios as capital gains/losses and offered its income for tax accordingly.
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