9911796707
TMI Blog2015 (9) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... have already disgorged the amount, though, the payment was made after the close of accounting year, and even after passing of the assessment order. But these payments related to same share transactions, which have given rise to the alleged income in the hands of the assessee. The appeal before the CIT(A) is a continuation of the original proceedings. Before the CIT(A), the assessee have already taken additional grounds of appeal on the strength of the SEBI order. Therefore, we find force in the contentions of the Id. Counsel for the assessee that ultimately no income has resulted to the assessees, out of these share transactions. See Monal Thappar vs. ACIT [2015 (7) TMI 913 - ITAT AHMEDABAD] - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 22/12/2009. 3. The Commissioner of Income Tax(A) has upheld the Assessing Officer 's action as follows:- "2.2 I have considered the facts of the case, assessment order and appellant's submission. Appellant disclosed capital gain on sale of shares of Nissan copper Ltd. The shares were purchased and sold during the year through share broker from stock exchange. Broker has issued contract notes and bills for such transactions. In view of these evidences, it is clear that capital asset in the form of shares were purchased and sold during the year and accordingly the difference is liable for capital gain tax. Appellant has rightly disclosed the capital gain on the basis of purchases and sale bills issued by share broker. Consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the capital gain resulting out of purchases and sale of shares was correctly offered for tax by the appellant and assessing officer has correctly taxed the same. There is no necessity for assessing officer to deal with each and every note written by assessees in computation of income. Since capital gain accrued to the appellant during this year, the same was taxable in assessment year 2007-08 only. Non-receipt of capital gain in 2009 cannot determine the taxability of capital gain in 2007-08. Since appellant herself agreed for transfer of withheld funds, she cannot claim that the transactions for held to be not genuine by Sebi. There is no provision under capital gains head to allow loss suffered subsequently on account of non-receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot;business income" or under the head "capital gains" ? x x x x x x x x x x x x x x x x x x 13. The Id. counsel for the assessee, while impugning the orders of the CIT(A) contended that the activity of the assessee in the purchase and sale of shares is of investment in the shares, and it cannot be assessed under the head "business income". Alternatively, on the strength of SEBI order, he contended that no income ultimately resulted to both the assessee, therefore, the amount of Rs. ₹ 30,98,785/- and ₹ 29,17,331/- is to be excluded from the assessments, of both these assessees, respectively in the Asstt.Year 2006-07. He further contended that capital gain is assessed under the head "business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compensatory in nature. Alternatively, she contended that if the alternative contention of the assessees is accepted by the Revenue, then there is no income left with the assessee, against whom they can claim settlement charges. 16. We have duly considered rival contentions, and gone through the record carefully. From the findings of the SEBI, it is implicit clear that both the assessees have indulged in violation of SEBI regulations, while making investments in IPOs. Whatever amounts they have illegally earned, which could be assessed as their income/, has been taken away from them. They have already disgorged the amount, though, the payment was made after the close of accounting year, and even after passing of the assessment order. But ..... X X X X Extracts X X X X X X X X Extracts X X X X
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