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2012 (5) TMI 257 - HC - Income TaxDeemed income u/s 41(1) - remission nor cessation or liability - transfer of shares - redemption of preferential shares - sham transaction - held that - The Tribunal has come to the conclusion that there was an error on the part of the Assessing Officer and the CIT(A) in making an addition under Section 41(1) as there was no remission or cessation of liability in question during Assessment Year 2002-03. The order of the Tribunal is evidently correct. There was no remission or cessation of liability during Assessment Year 2002-03. - Decided in favor of assessee. Redemption of shares - sham transaction - held that - transaction was not questioned by the Revenue for over ten years - The Revenue did not bring any material on record whatsoever to substantiate the contention that the transaction was sham. - Decided in favor of assessee. Transfer u/s 2(47) - held that - the judgment of the Supreme Court in Anarkali Sarabhai (1997 (1) TMI 5 (SC)) concludes the issue that a redemption of preference shares by a Company squarely comes within the ambit of Section 2(47) of the Income Tax Act, 1961. Cost indexation - capital gains - held that - Section 48 denies the benefit of indexation to bonds and debentures other than capital indexed bonds issued by the Government. The four percent non-cumulative redeemable preference shares were not bonds or debentures within the meaning of that expression in Section 48 of the Income Tax Act, 1961. In these circumstances, the Tribunal was correct in its decision to that effect. - Decided in favor of assessee.
Issues:
1. Addition of outstanding brokerage payable by the Assessee Company. 2. Redemption of preference shares and indexation benefit. 3. Whether redemption of non-cumulative preference shares results in 'transfer' of assets. 4. Allowance of indexation benefit on redemption of non-cumulative preference shares. Analysis: Issue 1: The Revenue challenged the deletion of the addition of outstanding brokerage payable by the Assessee Company for earlier years. The Tribunal found no remission or cessation of liability during the relevant assessment year, thus rejecting the Revenue's claim. The Tribunal's decision was upheld as there was no substantial question of law arising from this issue. Issue 2: Regarding the redemption of preference shares and indexation benefit, the Assessing Officer disallowed the set-off of long-term capital loss on redemption against capital gain. However, the CIT(A) allowed the benefit claimed by the assessee. The Tribunal affirmed the CIT(A)'s view, emphasizing the genuineness of the transaction and the applicability of indexation benefit. The Tribunal differentiated between redeemable preference shares and debentures, concluding that preference shares do not fall under the category of bonds or debentures for indexation purposes. Issue 3: The Tribunal held that the redemption of non-cumulative preference shares constitutes a 'transfer' as per Section 2(47) of the Income Tax Act. This conclusion was based on the Supreme Court judgment in Anarkali Sarabhai v. CIT, affirming that such redemptions fall within the ambit of the Act's transfer provisions. Issue 4: In addressing the indexation benefit on redemption of non-cumulative preference shares, the Tribunal rejected the Revenue's argument that these shares should be treated as bonds or debentures. The Tribunal clarified the distinction between bonds, debentures, and preference share capital, highlighting that preference shares do not qualify as bonds or debentures under Section 48 of the Income Tax Act. The Tribunal's decision was upheld, granting the indexation benefit to the assessee. In conclusion, the High Court upheld the Tribunal's decisions on all issues, dismissing the Revenue's challenges and ruling in favor of the assessee.
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