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2015 (6) TMI 846 - AT - Income TaxUndervaluation of shares - CIT(A) deleted addition out of short term capital gains on sale of 17500 shares Minda HUF Ltd. on the ground that the difference cannot be brought to tax unless. there is documentary evidence that there has been understatement of consideration - adoption of fair value of shares of Minda HUF Ltd. against the sale consideration - Held that -CIT(A) decided the issue in dispute by respectfully following the order in the case of CIT v. Sivakami Co. P. Ltd. 1986 (3) TMI 2 - SUPREME Court and has rightly held that in the case of the assessee, the Revenue has made no attempt to establish that there was any understatement though it might be that shares were sold at an under value. He has also held that even if for the sake of argument, it is accepted that market price of the assessee was different from the sale consideration, the difference cannot be brought to tax unless there is documentary evidence that there has been understatement of consideration. - Decided in favour of assessee.
Issues Involved:
1. Relief of Rs. 36,09,025/- from short term capital gains on sale of 17,500 shares. 2. Relief of Rs. 56,26,156/- from sale consideration of 23,597 shares. 3. Acceptance of purchase price of 60,365 shares at Rs. 176.29 per share instead of Rs. 269.03 per share. 4. Validity of assessment under section 144 of the I.T. Act. Detailed Analysis: Issue 1: Relief of Rs. 36,09,025/- from short term capital gains on sale of 17,500 shares The Revenue challenged the relief granted by the Ld. CIT(A) on the grounds that the sale price shown by the assessee at Rs. 105/- per share was without any basis, whereas the AO computed the fair value of shares at Rs. 311.23 per share. The Tribunal upheld the Ld. CIT(A)'s decision, noting that there was no documentary evidence proving understatement of consideration. The Tribunal emphasized that the burden of proof lies with the Revenue to establish that the assessee understated its income, citing the Supreme Court's decision in CIT v. K.P. Varghese. The Tribunal found no evidence of undisclosed consideration and ruled that the difference in market price cannot be taxed without documentary evidence of understatement. Issue 2: Relief of Rs. 56,26,156/- from sale consideration of 23,597 shares The Revenue contended the relief granted by the Ld. CIT(A), arguing that the sale price shown by the assessee at Rs. 71.48/- per share lacked basis, while the AO computed the fair value at Rs. 309.91 per share. The Tribunal reiterated the principles established in the Supreme Court's ruling in CIT v. K.P. Varghese, emphasizing that the Revenue must prove the actual consideration received was more than what was declared. The Tribunal found no evidence of understatement and upheld the Ld. CIT(A)'s decision to take the sale consideration as declared by the assessee for computing capital gains/loss. Issue 3: Acceptance of purchase price of 60,365 shares at Rs. 176.29 per share instead of Rs. 269.03 per share The Revenue argued that the purchase price shown by the assessee was understated compared to the fair value computed as per RBI guidelines. The Tribunal noted that the assessee had purchased the shares from a non-resident company as per an agreement between the JV partners. The Tribunal found that the Ld. CIT(A) correctly accepted the purchase price shown by the assessee, as there was no evidence of undisclosed consideration. The Tribunal upheld the Ld. CIT(A)'s decision, emphasizing that the Revenue failed to establish any understatement of purchase price. Issue 4: Validity of assessment under section 144 of the I.T. Act The assessee challenged the assessment under section 144, arguing it was bad in law and against principles of natural justice. The Tribunal noted that the Ld. CIT(A) admitted additional evidence under Rule 46A, as the detailed questionnaire was issued close to the time-barring date, providing insufficient opportunity to the assessee. The Tribunal found that the Ld. CIT(A) provided a fair opportunity to the assessee and upheld the assessment procedure, noting no injustice was caused to the assessee. Conclusion: The Tribunal dismissed the Revenue's appeal, upholding the Ld. CIT(A)'s order. The Tribunal found that the Revenue failed to provide evidence of understatement of consideration or purchase price and emphasized that tax cannot be levied based on surmises or conjectures. The Tribunal reiterated the principle that the burden of proof lies with the Revenue to establish that the actual consideration received was more than what was declared by the assessee.
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