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TMI Blog2011 (10) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.26 at which the appellant entered into the transaction. (2) The ld. CIT(A) has further erred in treating the loss on sale of shares as capital loss and not business loss as claimed by the appellant. (3) The ld. CIT(A) has failed in appreciating the evidences and submissions of the appellant while adjudicating the above grounds of appeal. (4) Initiation of penalty proceedings u/s 271(1)(c) are not justified. 2. The facts of the case are that the assessee is engaged in the business of trading in shares, finance and investment. The assessee filed its return of income on 26.10.2004 declaring loss of Rs. 3242900/-. The assessment u/s 143(3) of the I.T. Act was finalized by the AO on 29.9.2006 determining long term capital loss of Rs. 24183 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition be deleted. Attention was also drawn to the decision of Apex Court in the case of CWT vs. Mahadev Jalan 86 ITR 621. 4. The ld. CIT(A) considered the facts of the case and submissions of the assessee and decided the issue by observing as under :- "4.3 I have carefully considered the facts of the case, the submissions of the appellant and the assessment order. Market Creator is a public limited company listed on the Bombay Stock Exchange and the price on shares was 9.2.2004 was Rs. 1.52 per share. The appellant company has off loaded the shares in physical form to its directors on 10.2.2004 allegedly at mutually appropriate price of 26 paise per share. There is no logical or rational basis for choosing the said price as the said ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, the ld. DR relied on the orders of authorities below. 7. After considering the rival submissions and going through the material placed on record, we agree with the submissions of the ld. counsel of the assessee that the issue is now covered by the decisions of the Tribunal in the cases of Allure Investments & Finance (P) Ltd. (supra) and in the case of Cura Finstock (P) Ltd. (supra). On identical facts and circumstances of the case, the Tribunal in the case of Allure Investments & Finance (P) Ltd. (supra) has decided the issue in favour of the assessees by observing as under :- "7. We have considered the rival submissions, perused the material on record and have gone through the orders of the authorities below as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d property as in the case of decision of Bombay Court or shares of Private Ltd. Co., as in the case of ITAT order supra, we are of the considered opinion that it does not have any on the ratio of the judgment and the legal position. Legal position remains the same irrespective of the type of capital asset and we do not find any merit in this contention of the Ld. D.R. of the Revenue that this judgment of Hon'ble Gujarat High Court is not able in this case because assets in that was landed property whereas in present case, it is quoted share. As per the ratio laid down by Hon'ble Gujarat High Court, capital gain has to be computed on the basis of consideration accruing or received for transfer of capital asset and for that purpose, no refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case does not indicate that there was any case of willful tax avoidance or tax evasion. Hence, in our considered opinion, the judgment of Hon'ble apex court rendered in the case of Mcdowell & Co. Ltd. vs. C. T. O. (supra) has no relevance in the present case because we find that in the present case, the reasons are also given for adopting lower price of Rs. 0.26 per share as against the quotation at Bombay Stock Exchange of Rs. 1.52 per share. It is submitted that the assessee company has sold the shares in physical form to the related party whereas the shares traded at Bombay Stock Exchange were demat shares and if the assessee wants to sale the shares at a Stock Exchange, it has got the shares dematerialized which will require time and w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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