Taxability of Conversion of Stock in trade to Investment
According to provision of Income Tax Act,1961,In case of a business of trading in shares assessee may transfer some of his stock in trade into his capital asset by deciding to hold it as an investment or on discontinue of delivery based trading of shares, convert the stock of shares into investments and sell the same at a later stage and pay tax on the profit as capital gain instead of business profit. It is here to be noted that long term capital gain from equity shares sold in stock exchange
Section 45(2) of the Act are absolutely clear and applicable only in case when investment is converted into stock- in – trade and not vice – versa. On the date of conversion of stock-in-trade to capital asset, there shall be no business income. Generally, no one can earn income from oneself. [Kikabhai Premchand (Sir) vs. CIT (1953) 24 ITR 523 (SC)1. Unlike capital gains, there is no such provision under the provisions of “Income under the Business/Profession” creating a deeming fiction and charging the same as Business income.
In this article two decision contradictory to each other are discussed.
The controversy is whether gain arise on sale of shares in case of transfer of shares from stock –in –trade to investment is exempt or not:
ACIT vs M/s Superior Financial consultancy Service (ITAT Mumbai)
-In the previous year relevant to assessment year 2004-05, the tax payer was engaged in the business of borrowing and lending of funds.
-Prior to 31st March, 2002 the tax payer carried on the business of trading as well as speculation in shares. These shares were reflected as stock-in-trade in the Balance sheet for the year ended 31st March, 2002.
-However, from 1st April, 2002 the tax payer discontinued delivery based trading of shares and converted the stock of shares into investments which was also duly reflected as Investments in the balance sheet as on 31st March, 2003 along with a suitable clarification note in the notes to accounts.
-During the previous year relevant to assessment year 2004-05, the tax payer sold some of these shares held as investments and offered the gain arising there from amounting to Rs.7,13,29,191/- under the head “Capital Gains”. Since these shares were long term capital assets, the tax payer claimed exemption u/s 10(38) of the Income Tax Act (ITA).
-The Assessing Officer was of the opinion that the conversion of shares from stock in trade to capital assets was not genuine and indicated a colour able tax saving device conceived by the tax payer. He accordingly, treated the income as “business income” and taxed it accordingly.
-The Commissioner of Income Tax (Appeals) [CIT(A)] passed an order in favour of the tax payer and treated the gain as “capital gain”.
Aggrieved by the order of the CIT (A), the Revenue appealed to the ITAT.
-ITAT accepted the tax payer’s contention, upheld the order of the CIT (A) and concluded that the tax payer cannot be said to have entered into a sham transaction since the conversion is transparent from the audited accounts and the notes to accounts. Lastly, the ITAT, agreeing with the view of CIT(A), held that the decision of Chandigarh Tribunal (Supra) would squarely apply to the present case and thus, a tax payer may be an investor as well as a speculator at the same time. Further, if the Revenue accepts such shares held as investments then the gains accruing there from shall be considered as capital gain.
Indo Stosec (p) Ltd.vs. Income Tax Officer ( ITAT Mumbai)
Assessee was engaged in trading of shares and had been consistently declaring shares as its stock in trade – On opening date of current year, i.e., on 1-4-2005, it converted stock in trade into investment and immediately thereafter sold most of shares – Since shares had been classified as investment, assessee computed long term capital gain and short-term capital gain and claimed long term capital gain as exempt under section 10(38) – Whether on facts it was clear that assessee converted stock in trade into investment only to avail benefit of exemption and concessional rate of tax and, therefore, revenue authorities were justified in assessing gain arising on sale of shares as business income of assessee by disregarding claim of long-term capital gain and short – term capital gain. – Held, yes [para 5] [in favour of Revenue]
lT : Where assessee converted shares held as stock in trade into investment and sold same immediately thereafter with a view to avail benefit of exemption under section 10(38) and concessional rate of tax, conversion of stock in trade into investment was disregarded and gain on sale of shares was assessed as business income.
Amendment Recommended to Section 2(14) to provide clarity regarding Taxability Of Surplus On Sale Of Shares & Securities – Capital Gains or Business Income
Committee recommends that the Act be amended to specifically provide in a new clause (aa) of section 2(14) that a capital asset shall include shares and securities held by an assessee for a period exceeding 12 months from the date of acquisition (other than those declared as stock-in-trade/trading asset in the return of income furnished under section 139 of the Act) and the profits or gains arising from transfer of the same shall be taxable under the head “capital gains”. Shares and securities which are held for a period not exceeding twelve months will continue to be capital assets as per the existing clause (a) of section 2(14).
The result of the amendments recommended will be that:
(i) surplus arising on transfer of shares and securities held for a period exceeding twelve months will be, in all cases, chargeable as capital gains if they are not held as stock-in-trade.
(ii) surplus arising on transfer of shares and securities held for a period less than twelve months, upto a sum of rupees five lakhs, will be chargeable as capital gains if they are not held as stock-in-trade.
It is further proposed to provide that where the profits or gains arising to an assessee from transfer of shares or securities held by him for a period which is less than twelve months and which have been offered to tax under the head “capital gains”, do not exceed rupees five lakhs during the previous year, the Assessing Officer shall not treat such profits and gains as business income, provided the shares were not held as stock-in-trade.