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TMI Blog2015 (9) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... l gains on account of profits derived from sale of shares despite the fact that the same stood appropriated in SEBI's favour. The assessee-individual filed her return on 31/07/2007. She had sold 44,362/- shares of Nissan Copper Limited through a broker for Rs. 57,47,11.4/- resulting in the impugned profits. Her case throughout has been that the abovestated consideration was not received as per SEBI's impounding instructions. She would incorporate a note along with return duly clarifying all of the SEBI's proceedings praying that if the same go against her, necessary refund be ordered. It is evident form pages 97-98 of the paper book that SEBI's proceedings attained finality on 26-03-2009 wherein assessee settled the issue for payment for Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges. Therefore it is clear that appellant voluntarily transferred the withheld money to Sebi. The transactions were not declared null and void by the Sebi and as such purchase and sale of shares are valid and not held to be illegal by the Sebi. In the light of above facts, it is clear that appellant earned capital gain during this year and by consent term transferred the capital gain to Sebi towards settlement charges. By agreeing to transfer capital gain, appellant cannot claim that it had not earned capital gain. The moment sale transaction is complete, capital gains is liable to tax. Payment or receipt of sale consideration is not required for charging capital gain. Undoubtedly sale transaction was complete during the year. Payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder is that the same arose in succeeding assessment years only which is not relevant for the relevant previous year. It transpires that a coordinate bench of the tribunal in ITA No. 573/Ahd/2010 Monal Thappar vs. ACIT decided on 24/07/2015 has deleted an identical assessment of capital gains in view of SEBI's disgorging proceedings finalized in succeeding assessment year as under:- "12. In view of the above discussions, four issues emerge out for our adjudication, namely, (a) Whether the gain arisen to both the assessees on purchase and sale of shares is to be assessed under the head "capital gains" or "business income" ? (b) Whether after disgorgement of Rs. 30,98,785/- by Smt. Reetaben R. Thakkar and Rs. 29,17,331/- by Shri Monal Y. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es deserve to be allowed to the assessees. In support of his contentions, he relied upon the order of the ITAT, Mumbai in the case of Kaira Can Company Ltd. Vs. DCIT, 127 TTJ 514 (Mum). 15. On the other hand, the Id. DR relied upon the orders of the hue authorities below. She contended that SEBI order was passed after the end of the accounting period, and therefore, before the SEBI order, the income had resulted to both the assessees. Assessees have made investment of Rs. 4 crores and Rs. 2.8 crores by financing benami investors. This shows their modus operandi and how they have undertaken the activity in an organized manner. It is to be assessed as business income. She further contended that as far as settlement charges are concerned, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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