Query
I AM engaged in the buying and selling of shares. I take delivery of the shares purchased and also deliver the shares at the time of sale. In such a case, how is the turnover to be reckoned for the purpose of determining whether a tax audit under Section 44AB is to be done? Is it the aggregate amount of sale that has to be taken as the turnover?
Reply
In the instant case, since the purchase and sale of shares are delivery based, the gross sale value has to be taken as the turnover. Therefore, if the gross sale value exceeds Rs 40 lakh, a chartered accountant must conduct a tax audit under Section 44AB. It is understood that you are a regular trader in shares carrying on the business of buying and selling of shares.
Query
I am engaged in buying and selling of shares. I do not take delivery of the shares and these transactions are speculative in nature. What is to be taken as the turnover for the purpose of determining whether a tax audit is required in such cases? Are short-term and long-term capital gains to be taxed under the same head? Is a speculative business also to be taxed under the head capital gains? Can expenditure, such as depreciation on assets such as computer, air-conditioner, furniture and postage, telephone, conveyance, and so on, be claimed against speculative income? Can a business loss be set off against salary income?
Reply
In this case, since the transactions in shares are non-delivery based, it is only the net of the sales and purchases that is to be treated as turnover. Tax audit under Section 44AB would be required only if the turnover so computed exceeds Rs 40 lakh. You may refer to the decision of the Mumbai Bench of the Tribunal in the Babu Lal Enterprises vs ACIT (ITA NO.6031/MUM/1996) case as also the ruling in the Royal Cushion Vinyl Products Ltd case.
Both short-term and long-term capital gains are to be taxed under the head `capital gains’. Any profits and gains from a speculative transaction is to be taxed under the head `profits and gains of business or profession’. In case of speculative transaction, all expenditure allowable under Sections 30 to 38 can be claimed since the charge arises under the head `profits and gains of business or profession’.
You can claim expenses, such as postage, conveyance and telephone, incurred by you for carrying on the business. You can also claim depreciation on assets used for the business or profession. You may, however, note that a loss, if any, from a speculation business cannot be set off against income from other sources or other heads. It can only be set off against speculation income and the balance, if any, after such set off, can be carried forward and set off against speculation income within four assessment years immediately succeeding the assessment year in which the loss was first computed.
In case of business loss not being a speculative loss, it can be set off against income from other sources or other heads. It cannot, however, be set off against income under the head `salaries’. The balance, if any, can be carried forward and set off against business income within eight assessment years immediately succeeding the assessment year in which the loss was first computed. Unabsorbed depreciation can, however, be set off and carried forward and set off without any restriction either in the manner of set off or the timeframe for such set off.
Query
In case of `options’ and `futures’, is the gain or loss to be treated as speculation loss?
Reply
The gain or loss from dealing in `options’ and `futures’ will not be treated as a speculation loss. This will be so because of the provisions of Section 43(5) of the Act.
Under section 43(5) of the Income Tax Act, 1961 an eligible transaction in respect of trading in derivatives referred to in clause [(ac)] of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) carried out in a recognised stock exchange will not be treated as speculative transaction despite not been settled by actual delivery.
1. Eligible transaction in respect of Section 43(5) means any transaction:-
a) carried out electronically on screen-based systems through a stock broker or sub-broker or such other intermediary registered under section 12 of the Securities and Exchange Board of India Act, 1992 (15 of 1992) in accordance with the provisions of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) or the Securities and Exchange Board of India Act, 1992 (15 of 1992) or the Depositories Act, 1996 (22 of 1996) and the rules, regulations or bye-laws made or directions issued under those Acts or by banks or mutual funds on a recognised stock exchange; and
b)which is supported by a time stamped contract note issued by such stock broker or sub-broker or such other intermediary to every client indicating in the contract note the unique client identity number allotted under any Act referred to in sub-clause (A) and permanent account number allotted under this Act;
2. recognised stock exchange means a recognised stock exchange as referred to in clause (f) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) and which fulfils such conditions as may be prescribed and notified by the Central Government for this purpose;]
Query
How is turnover in Futures and options transactions calculated?? If notional value is considered, even 5-10 transactions will exceed 40L turnover and we need go through tedious Tax audit process.
Reply
The meaning of turnover for in case of transactions in Futures and Options of shares is not defined under the I T Act In case of derivative trading-Futures and Option- the difference on which the contract is purchased or sold is important. Although the value of contract is number of contract multiplied with the shares price , yet what is actually given or taken is differential amount in contract. For example if you purchase a future contract for Rs 105 for a share having a lot of 100,you pay nothing at the time of buying a contract, yet at the time of expiry if contract , you are either gainer or loser which is determined whether there is positive or negative difference. So , for the purpose of determining the turnover in case of future and options , for the purpose of 44AB , based on the guidance note of ICAI , following items should be considered to constitute turnover:-
· The total of positive and negative differences , plus
· Premium received on sale of options is also to be included in turnover ,plus
· In respect of any reverse trades entered, the difference thereon
But not the total value of contract.
Source: Taxguru
Regards
Rahul Gupta
CAclubindia
