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TMI Blog2015 (7) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. Appeal filed by the Revenue stands allowed for statistical purposes. - I.T.A. No. 5560/DEL/2010 - - - Dated:- 21-7-2015 - Shri H.S. Sidhu and Shri J.S. Reddy, JJ. For the Petitioner : Sh. J.P. CHANDRAKER, Sr. DR For the Respondent : S h. R.S. SINGHVI, CA ORDER PER H.S. SIDHU : JM This appeal by the Revenue is directed against the Order of the Ld. Commissioner of Income Tax (Appeals)-XXX, New Delhi dated 29.9.2010 pertaining to assessment year 2004-05 on the following grounds:- On the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in:- (i) directing the Assessing Officer (AO) to accept the capital gain arising from the sale of shares acquired under the stock option plan of M/s Microsoft Corporation as long term capital gain without considering the detailed and elaborate reasoning given by the AO and the JCIT in treating the said capital gain as short term; (ii) holding that the AO had no further jurisdiction to decide the issue afresh and that the only direction from the Tribunal was for verification of dates of acquisition of bonus shares which is wrong on facts (a) as the AO made the assessment u/s 143(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond round computed the income at an assessed income of ₹ 1,46,54,700/- vide his order dated 31.3.2009 u/s. 143(3)/254 of the I.T. Act, 1961. Aggrieved with the above, Revenue again filed the Appeal before the Ld. CIT(A), who vide impugned order dated 29.9.2010 has directed the AO to accept the Long Term Capital Gain. Aggrieved with the Ld. CIT(A) order, the Revenue has come before the Tribunal again and in the Second round the Tribunal in ITA No. 5560/Del/2010 (A.Y. 2004-05) vide order dated 25.10.2011 has dismissed the order of the Revenue by confirming the action of the Ld. CIT(A). 2.2 Against the order of the Tribunal dated 25.10.2011, Revenue has filed the Appeal before the Hon ble High Court of Delhi in ITA No. 417/2012 vide order dated 15.7.2013 has remanded the matter back to the Tribunal for deciding whether the findings recorded by the AO on the question of date of allotment are correct or not and directed the parties to appear before the Tribunal on 12.8.2013. 2.3 Against the impugned final judgment and order dated 15.7.2013 of the Hon ble High Court of Delhi in ITA No. 417/2012, the Assessee, Sh. Sanjeev Mathur has preferred a Petition for Special Leave to A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt records, especially the orders of the authorities below and the submissions made by both the parties before us along with the order / judgment of the Hon ble Delhi High Court and the Hon ble Supreme Court of India. Now we find that the AO in the first round while completing the assessment u/s. 143(3) of the I.T. Act, 1961 vide order dated 29.10.2006 has treated the shares purchased in Stock Option Plan as Short Term Capital Gain and Ld. CIT(A) vide his order dated 17.5.2007 has held that all the shares were held for more than one year and as such the transaction is to be treated as in the nature of long term capital gain which is covered by the Delhi Tribunal decision in the case of Alok Kumar vs. JCIT 13 SOT 706. Against the order of the Ld. CIT(A), Revenue came up before the Tribunal and Tribunal vide its order dated 25.6.2008 in ITA No. 3557/Del/2007 vide para nos. 5 to 7 has held as under:- 5. The Revenue is aggrieved. The only argument advanced on behalf of the Revenue by the Ld. DR was that the CIT(A) during the course of appellate proceedings erroneously admitted additional evidence in violation of Rule 46A(3) of I.T. Rules. Certain documents not filed before the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of verification by the AO of the dates of allotment of bonus shares. The matter for the above limited purpose may be remitted back to the AO. No other claim was made before us. In the light of stand of the parties, we remit the case to the file of the AO for verification of dates stated by the assessee as noted above. If dates of allotment of shares are found to be correct, the AO is directed to accept the claim of the assessee relating to long term capital gain. He should pass consequential order. 6.1 Pursuant to the aforesaid directions of the ITAT vide order dated 25.6.2008, AO in the second round computed the income at an assessed income of ₹ 1,46,54,700/- vide his order dated 31.3.2009 u/s. 143(3)/254 of the I.T. Act, 1961 by holding as under:- 7. Now considering overall facts of the case and evidence furnished by the assessee i.e. in the form of page 9 of the Paper Book and the above directions of the JCIT, R-47, the consequential order is passed. The assessee has intimated the date of exercise of option as 18.6.03 in the document produced. This date is taken as the date of allotment of shares in question which were vested with the assessee as per date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he merits of the claim and only direction was for verification of dates of acquisition of bonus shares in respect of which there is no dispute or controversy. On the merits of the claim, the issue is final as per order of the CIT(A) and accordingly AO is directed to accept the long term capital gain. 6.3 Against the order of the Ld. CIT(A), the Revenue has come before the Tribunal again and in the Second round the Tribunal in ITA No. 5560/Del/2010 (A.Y. 2004-05) vide order dated 25.10.2011 has dismissed the order of the Revenue by confirming the action of the Ld. CIT(A) by holding as under:- 6. We have heard the parties and have perused the material on record. The Tribunal remitted the matter by making the following observations:- We have given careful thought to the rival submissions of the parties. There is no dispute on the amount of capital gain liable to be taxed in the hands of the assessee. The dispute is whether capital gain of ₹ 94,12,649/- is short term or long term capital gain. The assessee has given the dates of acquisition of bonus shares which were sold and on which capital gain in dispute accrued to the assessee. The dates are given on page 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the AO on the question of date of allotment are correct or not and directed the parties to appear before the Tribunal on 12.8.2013. 6.5 Against the judgment and order dated 15.7.2013 of the Hon ble High Court of Delhi in ITA No. 417/2012, the Assessee, has preferred a Petition for Special Leave to Appeal (CC) No. 6145 of 2014 before the Hon ble Supreme Court of India and the Hon ble Supreme Court of India vide its judgment dated 3.7.2014 has passed the following order:- Delay condoned. We do not find any reason to entertain this petition. The Special Leave Petition is, accordingly, dismissed. However, we clarify that while deciding the case, the Tribunal shall not be influenced by the observations made by the High Court in its impugned order and it shall decide the matter on the facts and merits of the case. 6.6 In compliance of the order dated 03.7.2014 passed by the Hon ble Supreme Court of India, the present appeal was heard at length. After hearing both the parties and perusing the records especially the orders of the revenue authorities, Tribunal, Hon ble High Court and the Hon ble Supreme Court of India, we are of the considered view that the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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