M/S Telestar Investments Pvt. Ltd.,, ... vs Department Of Income Tax

Income-tax Officer, Ward 12(2), Bangalore. ... Appellant

Vs.

M/s.Telestar Investments Pvt. Ltd. No.314, Raheja Arcade, Koramangala, Bangalore. ... Respondent PAN:AAACT5746M

Appellant by: Shri P. Dhivahar, JCIT(DR) Respondent by: None.

Date of hearing : 08/07/2015 Date of pronouncement: 24/07/2015.

Per Smt. P. MADHAVI DEVI, JM:

This appeal by the revenue is against the order of the

CIT(A)-V, Bangalore, dated 03/10/2011 for the assessment year

1997-98. The revenue has raised the following grounds of

appeal:

ITA No.1375/Bang/2011

M/s Telestar Investments Pvt. Ltd.

Page 2 of 6

"1 The order of the Ld.CIT(A) is opposed to law and facts of the case.

2. The CIT(A) erred in holding that the income derived on sale of shares has to be assessed as capital gains without appreciating that the assessee being a investment company, its primary business is to deal in shares and any profits arising from such business should be assessed as business income.

3. For these and other grounds that may be urged at the time of hearing, it is prayed that the order of the CIT(A) in so far as it relates to the above grounds may be reversed and that of the Assessing Officer may be restored.

4. The appellant craves leave to add, alter, amend and/or delete any of the grounds mentioned above."

2. Brief facts of the case are that the assessee-company

which is engaged in the business of investment, had filed its

return of income for the relevant assessment year on 29/11/1997

declaring a total income of Rs9,97,320/- after setting off of

business loss of Rs.69,104/- against capital gains of

Rs.10,66,425/-. During the assessment proceedings u/s 143(3)

of the Income-tax Act, 1961 [hereinafter referred to as 'the Act'

for short] the Assessing Officer (AO) held that the income arising

out of sale of shares is business income and not capital gains as

claimed by the assessee.

3. Aggrieved, assessee carried the matter in appeal before

the CIT(A) who deleted the addition made by the AO directing ITA No.1375/Bang/2011 M/s Telestar Investments Pvt. Ltd.

Page 3 of 6 him to treat profits on sale of shares under the head 'capital

gains'. Aggrieved by the same, the Revenue came in appeal

before the Tribunal and the Tribunal, vide order dated

08/09/2006 in ITA No.1072/Bang/2004 set aside the order of the

AO directing fresh assessment observing that it is not clear

whether the assessee-company used its own funds or borrowed

funds or whether it was valuing the stock-in-trade at cost price or

market price and that if the stock-in-trade is valued at cost price

and if such shares are not valued at market price, then such

shares cannot be treated to have been held as stock-in-trade.

Pursuant to the order of the Tribunal, the AO issued a notice u/s

143(2) of the Act which was returned un-served by the postal

authorities. Thereafter notice was served on the Chartered

Accountant of the assessee and details were called for. In

response, the assessee filed a letter dated 26/11/2007 stating

that the assessee-company has purchased shares in the year

1992 and 1995 and therefore they were long-term investments

and further that the shares sold were not procured out of

borrowed funds and that they were held as investment and

valued at cost consistently from the inception and year after year.

Thereafter, after considering the assessee's contentions and

referring to certain judicial precedents on the issue, the AO again

held that the income from sale of shares is business income of the

assessee. He accordingly brought it to tax. ITA No.1375/Bang/2011

M/s Telestar Investments Pvt. Ltd.

Page 4 of 6

4. Aggrieved, assessee preferred an appeal before the CIT(A)

who allowed the same and the revenue is in appeal before us.

The learned Departmental Representative supported the order of

the AO. None was present on behalf of the assessee.

5. On consideration of the material on record and the

arguments of the learned Departmental Representative, we find

that in the proceedings u/s 143(3) r.w.s 254 of the Act, AO had

called for the details of the shares sold as well as the assessee's

explanation as to why income from sale of shares should not be

treated as business income. The AO has reproduced the details

of the particulars called for by him as well as reply furnished by

the assessee at paras.2 and 3 of his order. For ready reference,

the said paragraphs are reproduced hereunder:

"2. ...................................In response to this notice, Sri T.J.Khan, Chartered Accountant of M/s.Kumbhat & Co., Chartered Accountants, appeared on 12.11.2007, to whom a notice u/s 142(1) of the Act was issued calling for the following details:

a) Copy of the wealth tax return for AY 97-98.

b) What percentage of the total shares has been sold?

c) How long were the shares sold, held?

d) Whether the shares sold were acquired out of own funds or borrowed funds?

e) Whether the shares sold were valued at cost price or market price? and

f) Was any bonus shares issued against the shares sold?

3.0 In response to these queries, the assessee's said authorized representative, Sri. T.J.Khan, furnished a letter dated 26.11.2007 detailing the following:

a) The assessee company do not have any immovable properties or any other assets attracting the provisions of Wealth-tax Act and hence, the ITA No.1375/Bang/2011 M/s Telestar Investments Pvt. Ltd.

Page 5 of 6

question of filing wealth-tax return for the said assessment year does not arise.

b) During the year, the assessee company had sold 34.88% of the shares out of its holdings of the shares (191825/549825*100=34.88%).

c) The assessee company sold 191825 shares during the year. Out of these, 153825 are held since its inception i.e. 1992 and the balance 38,000 shares were purchased during the year 1995. Hence, it is very clear that these are long term investments.

d) The shares which were sold were not procured out of borrowed funds.

e) All the shares which were sold were held investments and valued at cost consistently from its inception and year after year. Even, shares which sold during the year were obviously part of the said investments and valued at cost only.

f) The company did not receive any Bonus shares in any of the years."

Thereafter, AO, without giving any reason as to why he is not

accepting the assessee's contention, has proceeded to make the

disallowance by referring to the following decisions:

i. Michael A.Kallivayalil vs. CIT (1976) 102 ITR 2002, ii. G.Venkata Swami Naidu & Co. vs. CIT (1959) 35 ITR 594 and

iii. Sarder Indra Singh & Sons Ltd. vs. CIT (1953) 24 ITR 415

We find that the AO has not given any reasons for not accepting

the assessee's contention and also as to how these decisions are

applicable to the facts of the case before him. Therefore, in our

opinion, the CIT(A) has rightly observed that the assessee's

statement that the shares which were sold were not acquired out ITA No.1375/Bang/2011 M/s Telestar Investments Pvt. Ltd.

Page 6 of 6

of borrowed funds and that all the shares purchased by the

company were held as investments and valued at cost

consistently from its inception and year after year, has not been

rebutted by the AO with any evidence to the contrary. Therefore,

we do not see any reason to interfere with the order of the

CIT(A).

6. In the result, the revenue's appeal is dismissed.

Pronounced in the open court on 24th July, 2015.

sd/- sd/- (Abraham P George) (Smt. P.Madhavi Devi) ACCOUNTANT MEMBER JUDICIAL MEMBER

eksrinivasulu

Copy to:

1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR, ITAT, Bangalore. 6. Guard file

By order

Assistant Registrar Income-tax Appellate Tribunal Bangalore