Taxation of Shares & Securities- Recent Developments
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1 Taxation of Shares & Securities- Recent Developments Wednesday, 2 nd August, 2006 IMC, Churchgate BCAS Pradip Kapasi & Co. 1
2 Business v. Capital Gains A billion $ question Proposed guidelines Instruction 1827 dt FM s observations FICCI s suggestion PMS proposal Recent judicial views Deepaben A. Shah, 99 ITD 219 (Ahd) G.E. Pension Trust, 200 CTR 121 (AAR) Revashankar A. Kothari, 283 ITR 338 (Guj) Pradip Kapasi & Co. 2
3 Business v. Capital Gains-II Desired parameters Intention - Period of holding Frequency - Fund utilised Time devoted - Set-up Listing - PMS Occupation - Scale Alt. occupation - Bank account Sales/ Purchase - Utilisation Treatment in books - Statutory requirements MOA/AOA - Avg. holding period Group companies - Promoters No. of script - Genuineness Applicability of s. 45(2) Pradip Kapasi & Co. 3
4 Investment v. Stock Which is beneficial Allowance of expenses. Concessions Application of s. 14A Set-off of losses Credit for STT C/f of losses Trade-off Ramnarain & Sons, 41 ITR 534(SC) N.S.S. Investments, 277 ITR 149(Mad) Mysore Rolling Mills, 195 ITR 404(Karn) Pradip Kapasi & Co. 4
5 Conversion into investment Shirinbai Kooka s principle Sharkey s principle Effect of conversion Sir Kikabhai Premchand, 24 ITR 506(5C) Dhanuka & Sons 124 ITR 24(Cal) ALA firm, 189 ITR 285 (SC) Possibility & proofs Cost of acquisition Keshavji Kaarsondas, 207 ITR 737(Bom), B.K.A.V. Birla (Cal) Kalyani Exports & Investments, 78 ITD 95 (Pune) Period of holiding S.2 (42A) B.K.A.V. Birla 35 ITR 136 (Cal) Indexation Kalyani Exports & Investments and other views Explanation (iii) to s. 48 Harmonious Construction Pradip Kapasi & Co. 5
6 Portfolio Management- PMS Types of arrangements Participating Non participating Nature of fees Advisory & Management Brokerage Relationship & Treatement Proposal under consideration Deductibility of expenses Business Capital gains Pradip Kapasi & Co. 6
7 Derivatives Amendment in s. 43(5)(d) Notification dated Effect of amendment On b/f losses On set-off during the year On Expl. to s. 73 for companies On loss of other derivatives Effect of Notification On losses and profits up to the date of Notification On commodities derivatives Relating back Pradip Kapasi & Co. 7
8 Arbitrage Nature of activity Objectives Income Business -Capital Gains Other sources Speculative transactions Delivery - Hedging Losses S. 43(5) - Explanation to s. 73 Expenses Credit for STT Tax Audit Pradip Kapasi & Co. 8
9 S.14A Disallowance Expenses for dividend income Applicability of s. 14A Harish Bhatt, 85 TTJ 872 (Ahd.) Mafatlal Holdings Ltd., 85 TTJ 821 (Mum) Situations Directly attributable - Common expenses Past borrowings - Nexus No expenses - No Dividend Power to make rules Quantification Development of case law Consensus for disallowance Rajashthan Warehousing Corpn., 242 ITR 450(SC) Escorts Ltd., 102 TTJ 522 (Del) Maruti Udyog Ltd., 95 TTJ 778 (Del) Eicher Motors Ltd., 101 TTJ 369 (Del) Ever Plus Securities, 102 TTJ 120 (Del) Applicability of s. 14A to Losses S.S.Thiyagrajan, 129 ITR 115 (Mad) Royal Turf Club Ltd., 144 ITR 709 (Cal) Pradip Kapasi & Co. 9
10 Cost, Delivery & Set-off Part of cost Mithilesh Kumari, 92 ITR 9 (Del) Maithreyi Pai, 152 ITR 247 (Hyd) K. S. Gupta, 119 ITR 372 (AP) B. Subhadra, 92 TTJ 405 (Hyd) Consideration in kind Cost of shares Heinrich de Fries GMBH, 98 ITD 292(Mum) Delivery s. 43(5) Broker s Pool Account Smt. Jayashree Ray Choudhary, 93 TTJ 714 (Kol) Right of set-off of loss STCG against LTCG Montgomerry Emerging Mutual Funds, 100 ITD 217 (Mum) Pradip Kapasi & Co. 10
11 Rebate for STT-s.88E Option to set-off losses Speculation business STT MAT Deduction Applicability Credit for STT Pradip Kapasi & Co. 11
12 Stock Broker Business Expenditures Nesel Holdings, 200 CTR 7 (Del) Peerless, 94 ITD 89(Kol)(SB) SEBI fees Sureshchand Jain, 102 TTJ 970 (Mum) Loss for constituent Expl. to s. 73 Parkar Securities Ltd., 102 TTJ 235 (Ahd.) Demutualisation s. 47(xiiia), s.55(2)(ab), s. 2(42A), Expl. (ha) Applicability of Explanation to s. 73 GDB Shares & Stock, 88 TTJ 352(Kol.) SRJ Securities Ltd. 81 TTJ 484(Del.) Pradip Kapasi & Co. 12
13 Demutualization Exchange Exemption u/s 47(xiiia) STCG and s LTCG Treatment in case of loss COA of shares DOA of shares Explanation (ha) to s. 2(42A) Indexation Depreciation on shares COA/DOA of trading & clearing rights S.55(2)(ab) and Explanation (h) to s. 2(42) Pradip Kapasi & Co. 13
14 Cost of controlling interest Part of cost of shares Maharni Usha Devi, 131 ITR 445 (MP) Venkatesh (Minor), 243 ITR 367 (Mad) Cost of controlling interest Raghveer Narain Singh, 147 ITR 447 (Pat) Ashok Behri Lal (HUF), 99 TTJ 513 (Del) Power through holding - inseparable Pradip Kapasi & Co. 14
15 Explanation to s. 73 Relevance of legislative intent Amar Portfolio, 92 ITD 324 (Mum) Frontline Capital Services, 96 TTJ (Del) 201 AMP Spg. & Wvg. Mills (P) Ltd., 101 TTJ 1113 (Ahd.) Isolated transaction Modella Wollen Mills, 101 TTJ 1009 (Mum) Aakrosh Inv. & Leasing, 90 ITD 287(Mum) Valuation loss/ No purchase Nirvan Holdings, 35 BCAJ 399(Mum) Paharpur Cooling Towers, 85 ITD 745(Kol) Sun Distributors, 68 Taxman 223 (Cal) IPO deals AMP Spg. & Wvg. Mills s case Pradip Kapasi & Co. 15
16 Explanation to s. 73-II Loans and Advances company Venkateshwara Inv., 92 TTJ 1129(Kol) (SB) (Years) Vakharia Fin. Ser. Ltd., 6679/M/2002 dt. 19, J (Funds) Fortress Fin. Ser. Ltd. 4185/M/2001 dt H (Income of other years) Concord Commercial Co. Ltd., 94 TJ 913 (Mum)(SB) Negative GTI/Business income Associated Capital Markets, 1103/M/2001 dt Loss & Profit Samba trading & Inv. Co.,, 58 ITD 360(Mum). Pradip Kapasi & Co. 16
17 Dividend Stripping/Wearing Finance Act, 2001 A.Y (A.Y ) Securities and Units Position up to A.Y Wallfort Shares, 96 ITD 1 (SB) Facts Ignore loss - Cumulative - Listed or not Trading included - Mutual Funds, also Excess loss Multiple Distribution - Reinvestment options Bonus Stripping S.94(8) A.Y Bonus units - Ignore Loss Loading of COA on bal. Units All sold Misconceived amendment Pradip Kapasi & Co. 17
18 Deemed Dividend Accumulated profits Date of M.B. Stockholdings, 84 ITD 542 (Ahd) Sujatha Venkteshwaran, 61 ITD 485 (Mad) Debit balance in P & L Account Oscar Investments Ltd., 98 ITD 339 (Mum) persons of substantial interest Transfer during LIP Kameshwari Finance, 102 TTJ 461 (Del) Pradip Kapasi & Co. 18
19 Not eligible s. 10(38), s.111a Sale in off market deals Buy back. Reduction. Offers. Mergers Preference shares/private companies Debt/Index Funds Foreign securities Derivatives Pradip Kapasi & Co. 19
20 Reorganisation Buy back of shares S.77, 77A &B of Companies Act S.2(22) and s. 46A of Income tax Act G. Narsimhan, 236 ITR 327 (SC) S.10(38) and s. 111A Applicability to stock-in-trade Amalgamation Tax neutral Compliance of s. 47(vii) FMV and Indexation H.F. Craig Horvey, 244 ITR 578 Demerger Forced application of s. 47(vid) NBV of assets to NW Apportionment of Cost & Indexation Reduction of capital Kartikeya Sarabhai, 228 ITR 163(SC) Liquidation S. 46 and s. 2(14) N. Bhagavathy Ammal, 259 ITR 678 (SC) Pradip Kapasi & Co. 20
21 Rights/ Warrants Period of holding Navin Jindal, 280 ITR 608 (P&H) Explanation to s. 2(42A) Rights/Bonus by a dealer Madeangopal Radheylal, 73 ITR 652 (SC) Motichand Constructions (P) Ltd., 261 ITR 70 (Bom) Warrants Cost of warrants Issued with Debentures. Separately. Rights Asra Sales, 78 ITD 87(Pune), J.T. Holdings, 89 ITD 569(Mum.) Bharat S. Shah, 101 TTJ 244 (Mum), Kalyani Exports(Pune), Whether transfer on allotment of shares Tarnik investments, 94 ITD 183(Del.) Cost of acquisition of shares- s. 55(2)(aa) (A) & (B) Date of acquisition of shares Pradip Kapasi & Co. 21
22 ESOP Statutory Provisions Proviso to s. 17(2) Guidelines of Central Government/SEBI Applicability to other Schemes/Plans S. 47(iii) without consideration Gift * Trust * Will * Inheritance Regular sales or transfer S S. 111 A - S.10(38) Guidelines not followed Taxability Infosys Technologies Ltd., 86 ITD 312 (Bang) Television Eighteen India Ltd., 101 TTJ 669 (Del) Year of taxation Abbott v. Philbin, 44 ITR 144 (HL) Wipro Ltd., 80 TTJ 106 (Bang) Pradip Kapasi & Co. 22
23 Auction Failure of seller to deliver Purchase and sell by agent Short term capital/business loss Effect on original holding Buyer- Delivery at same price -compensation Failure of buyer to take delivery Subsequent sale by agent Loss recovered from buyer Business loss/capital loss Effect on seller - compensation Pradip Kapasi & Co. 23
24 Investments Abroad Period of holding Shares. Securities. Units Amalgamation. Demerger Cost of Acquisition Restructuring Taxable dividend Gross or Net Computation of capital gains Taxable gains Tax credit DTAA. S.90, 90A and 91 Pradip Kapasi & Co. 24
25 Stock Lending Objective and utility SLS, 1997 ALBM, BLESS, Badla SEBI s restriction Circular No. 751 dated 10 th February, 1997 Section 47(xv) Applicability to borrower SLP off-shoots STT Private Lending Badla Pradip Kapasi & Co. 25
26 NRI Invesments Computation of gains Foreign currency. Indexation Chapter XIIA Concessions & Exemptions DTAA and Tax credit Pradip Kapasi & Co. 26
27 Thank You & Good Luck Pradip Kapasi & Co. 27
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