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2010 (12) TMI 862 - AT - Income TaxReopening - Capital gain - In the instant case, the sale and purchase is subject to the approval of the Reserve Bank of India, and the approval granted by the Reserve Bank of India, also specifically refers to the consideration - In the present case, the assessee was allotted shares in CEPL against relinquish-ment of shares which he has already acquired in VML and CPL - There is nothing on record to show that the transactions entered into by the assessee in acquiring the shares in VML and CPL and later in CEPL are different links of the same chain - When there is no basis to come to such a conclusion, there is no sanctity in comparing the purchase value of shares of ORE and by the assessee to hold that the differential amount of Rs. 504.15 per share would be in the nature of short-term capital gains in the hands of the assessee - In the present case, as already stated ORE is having a dominant position not only in the shareholding of CEPL but also in the corporate and operational matters - Therefore, the addition made by the assessing authority towards short-term capital gains in the hands of the assessee deleted. - Appeal is allowed
Issues Involved:
1. Validity of the reopening of the assessment under section 147. 2. Determination of whether the purchase and sale of shares are independent transactions or part of a single scheme. 3. Computation and taxation of short-term capital gains. Issue-Wise Detailed Analysis: 1. Validity of the Reopening of the Assessment: The assessee contended that the reopening of the assessment under section 147 was without jurisdiction and should be canceled. The Commissioner of Income-tax (Appeals) upheld the reopening, but the assessee challenged this decision, arguing that the assessment lacked a valid basis for reopening. 2. Independent Transactions vs. Single Scheme: The Assessing Officer concluded that the transactions involving the purchase of shares in VML and CPL and the acquisition of shares in CEPL were part of a larger business plan. This conclusion was based on the joint venture agreement and the sequence of transactions. The assessee argued that these were independent transactions, each approved by the Reserve Bank of India (RBI) and carried out transparently. The Tribunal found that the transactions were independent and not different segments of the same transaction. The statutory approvals and procedural evidence indicated that the transactions were separate, and the acquisition of shares by ORE in CEPL was an independent transaction. The Tribunal noted that the transactions were carried out within a short span of time but were transparent and compliant with RBI regulations. 3. Computation and Taxation of Short-Term Capital Gains: The Assessing Officer calculated short-term capital gains by comparing the acquisition cost of shares by the assessee in CEPL at Rs. 100 per share with the acquisition cost by ORE at Rs. 604.15 per share. The difference was treated as short-term capital gains. The assessee argued that the transactions were carried out at face value and were approved by the RBI. The Tribunal agreed with the assessee, noting that the Assessing Officer had presumed the value of CEPL shares at Rs. 604.15 per share without any basis in valuation or market quotation. The Tribunal found no evidence that the assessee paid or received any amount other than the amounts reflected in the records. The Tribunal also noted that ORE's acquisition of shares at a higher price was justified by its dominant shareholding and additional rights and privileges in CEPL. The Tribunal emphasized that the Assessing Officer's comparison of share values lacked a legal basis and was based on hypothesis. Conclusion: The Tribunal concluded that the transactions were independent, the reopening of the assessment was without valid jurisdiction, and the computation of short-term capital gains was erroneous. The addition of Rs. 13,90,80,365 as short-term capital gains was deleted, and the appeal was allowed. Pronouncement: The order was pronounced on Friday, the 24th December, 2010.
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