2009 (2) TMI 87 - HC - Income Tax

Sale of right of fully convertible debentures held that in working out capital gain/loss the principles that have to be applied are those which are a part of the commercial practice or which an ordinary business man resort to while computing for his business purposes to determine cost of right shares decision of SC in Miss Dhun Dadabhoy Kapadia applicable - short term capital loss claimed by assessee on the transaction relating to renunciation of rights to receive debentures is allowed

Summary

Issues:
1. Entitlement to short term capital loss
2. Determination of short term capital gain on the sale of debentures
3. Applicability of a previous court decision on loss calculation

Issue 1: Entitlement to short term capital loss
The case involved tax appeals where the central issue was whether the Appellate Tribunal was correct in holding that the assessee was entitled to a short term capital loss. The respondent, an investment company, had initially declared NIL income but later claimed a short term capital loss of Rs.7,03,96,560. The Assessing Officer disallowed this loss, stating that the entire consideration received from renunciation of rights to receive debentures was taxable due to the absence of any cost of acquisition. The Commissioner (Appeals) ruled in favor of the assessee, and the Tribunal upheld this decision, dismissing the departmental appeal. The court analyzed the provisions of the Income-tax Act and previous court decisions to determine that the assessee was indeed entitled to the claimed short term capital loss.

Issue 2: Determination of short term capital gain on the sale of debentures
The Assessing Officer had worked out the taxable short term capital gains based on the consideration received from renunciation of rights to receive debentures, leading to the disallowance of the claimed loss by the assessee. The Revenue contended that the market factors and the nature of the transaction should be considered in determining the capital gain or loss. However, the Tribunal, supported by the respondent's arguments, applied previous court decisions and principles to hold that the assessee was entitled to the short term capital loss. The court further discussed the amendments in the Income-tax Act related to the cost of acquisition, emphasizing the retrospective nature of such amendments and their impact on the transactions under consideration.

Issue 3: Applicability of a previous court decision on loss calculation
The court extensively discussed the applicability of a previous court decision in determining the loss calculation for the present case. The Revenue argued that the decision was not applicable due to differences in the provisions of the Acts and the nature of the entitlement involved. However, the respondent relied on the principles laid down by the Apex Court in a specific case to support their claim for the short term capital loss. The court analyzed the legislative amendments and the retrospective nature of such changes to conclude that the principles established by the previous court decision were relevant and applicable in the present case. Ultimately, the court upheld the Tribunal's decision, stating that the assessee was entitled to the claimed short term capital loss, and dismissed the appeals.

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