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2015 (8) TMI 323 - AT - Income TaxClaim of exemption u/s. 10(38) - income arising from transfer of capital asset viz., equity shares of a listed company by name Bhoruka Financial Services Ltd. (BFSL) on sale of which securities transaction tax had been paid - CIT(A) allowed claim - Held that - The issue raised by the AO in the order of assessment has already been decided in the case of Bhoruka Engineering Industries Ltd. (2013 (7) TMI 543 - KARNATAKA HIGH COURT) upheld the order of the AO holding that the sale of shares by the various entities of Bhoruka group was a colorable device to evade tax and the capital gain on sale of shares was to be regarded as short term capital gain and exemption u/s.10(38) of the Act was not to be allowed. The assessee had carried the matter to the Hon ble High Court of Karnataka. The Hon ble High Court of Karnataka was pleased to set aside the order of the Tribunal and held that the transaction of sale of shares were real, genuine and for valuable consideration and were within the framework of law. Consequently, exemption u/s. 10(38) of the Act had to be allowed. It is not in dispute that the facts in the case of assessee are identical with that of the case of Bhoruka Engineering Industries Ltd., (supra) and therefore the decision of the Hon ble High Court of Karnataka will squarely apply to the facts of the present case. We are therefore of the view that the order of the CIT(Appeals) has to be upheld and the claim of the assessee for exemption u/s. 10(38) of the Act has to be allowed. Decided in favour of assessee.
Issues:
Appeal against order allowing exemption u/s. 10(38) of the Act for income from transfer of capital asset. Dispute over classification of capital gain as long-term or short-term. Challenge to initiation of reassessment proceedings u/s. 147. Analysis: 1. The appeal concerns the Revenue's disagreement with the CIT(A)'s decision to grant exemption u/s. 10(38) of the Act for income from the sale of equity shares of a listed company. The Revenue contended that the CIT(A) erred in treating the capital gain as long-term without a valid basis. The Revenue cited a Karnataka High Court decision and a pending SLP challenging the same. 2. The facts revealed that the assessee, a HUF and shareholder of the company, declared a short-term capital loss in the return for AY 2006-07 but claimed exemption u/s. 10(38) for a substantial capital gain from selling shares. The AO initially accepted this claim but later initiated reassessment proceedings to disallow the exemption. 3. The core issue revolved around the sale of shares to DLFCDL and the nature of the transaction. The AO argued that the transaction was a means to transfer the underlying asset (land) and evade tax. The AO asserted that the transaction should be treated as short-term capital gain, relying on a Tribunal decision in a similar case. 4. On appeal, the CIT(A) upheld the exemption claim, aligning with the Karnataka High Court judgment in a related case. The Tribunal noted the similarity of facts between the present case and the precedent, leading to the decision to uphold the CIT(A)'s order. 5. The Tribunal emphasized that since the facts mirrored the earlier case where the High Court ruled in favor of the assessee, the exemption u/s. 10(38) should be allowed. Consequently, the Tribunal dismissed the Revenue's appeal, without delving into the reassessment proceedings' validity raised by the assessee in cross objections. Conclusion: The Tribunal's decision favored the assessee, upholding the exemption u/s. 10(38) for the capital gain on the sale of shares. The ruling was based on the alignment of facts with a previous High Court judgment, leading to the dismissal of the Revenue's appeal. The issue of reassessment proceedings' validity was left unaddressed due to the appeal's dismissal on its merits.
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