2012 (12) TMI 448 - AT - Income Tax

Jurisdiction of CIT u/s 263 Held that - Though the assessment order passed u/s 143(3) does not indicate or suggest that the AO made any enquiry on the issue which is subject matter of order u/s 263, however, AO has considered the assessment order of last year and was aware about the disallowances and the issues involved in the last assessment year. There is no quarrel on the point that if the AO has not made any enquiry and thereby has not applied his mind while framing the assessment order, then the CIT has the jurisdiction u/s 263 to revise such an assessment, if the same is erroneous and prejudicial to the interest of revenue. Capital Gain - Whether market price of the shares can be taken as full value consideration for the purpose of computation of capital gain as per Sec. 48 Assessee has sold share which they received as bonus share, which had no cost of acquisition CIT u/s 263 compare the sale prices of share with sale price of shares sold during last year - Held that - When the transaction is bonafide and the actual sale consideration received by the assessee has not been suspected, then for the purpose of computation of capital gains, the full value of consideration cannot be substituted by market price or value of the capital asset as on the date of transfer. Therefore we hold that the market price of the shares cannot be taken as full value consideration for the purpose of computation of capital gain as per section 48. Appeal decides in favour of assessee

Issues Involved:
1. Justification of the Commissioner invoking revisionary powers under section 263 of the IT Act.
2. Determination of the correct capital gain from the sale of shares.
3. Validity of the Assessing Officer's acceptance of the capital gain reported by the assessee.
4. Applicability of market value versus actual sale consideration for computing capital gains.

Detailed Analysis:

Issue 1: Justification of the Commissioner invoking revisionary powers under section 263 of the IT Act
The primary issue for consideration was whether the Commissioner was justified in invoking his revisionary powers under section 263 of the IT Act. The Commissioner observed that the capital gain offered by the assessee was based on the book value of the shares, which was not in tandem with the sale price adopted in the previous assessment year. The Commissioner issued a show cause notice under section 263, stating that the assessment order was erroneous and prejudicial to the interest of the revenue because the Assessing Officer had not examined the market value of the shares.

Issue 2: Determination of the correct capital gain from the sale of shares
The assessee contended that the shares sold during the year were bonus shares with no cost of acquisition and were valued at Rs. 105/- per share, which was the book value. The assessee argued that the capital gain was correctly computed and reported. The Commissioner, however, directed the Assessing Officer to verify the market value of the shares, as the shares were sold in the earlier year at a significantly higher price.

Issue 3: Validity of the Assessing Officer's acceptance of the capital gain reported by the assessee
The assessee argued that the Assessing Officer had considered all relevant details and had accepted the capital gain after due examination. The assessee cited previous assessments and argued that the Assessing Officer had applied his mind while passing the assessment order. The Commissioner, however, felt that the Assessing Officer had not conducted a proper inquiry into the market value of the shares, making the assessment order erroneous.

Issue 4: Applicability of market value versus actual sale consideration for computing capital gains
The Tribunal noted that the Commissioner had not provided any evidence to suggest that the assessee had received more consideration than what was reported. The Tribunal referred to several judicial precedents, including decisions from the Supreme Court and High Courts, which held that the full value of consideration under section 48 should be the price agreed upon by the parties and not the market value. The Tribunal emphasized that unless there was proof of an understatement of consideration, the market value could not be substituted for the actual sale consideration.

Conclusion:
The Tribunal concluded that the Commissioner had not doubted the actual consideration received by the assessee and had not provided any evidence of understatement of sale consideration. The Tribunal held that the market value of the shares could not be taken as the full value of consideration for computing capital gains under section 48. Consequently, the directions given by the Commissioner were contrary to the settled proposition of law. The Tribunal set aside the impugned revision order passed by the Commissioner and allowed the appeal of the assessee.

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