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TMI Blog2016 (2) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... ty appeal filed against the order dated 25/02/2014 by ld. CIT(A)-Muzaffarnagar for A.Y. 2004-05 on the following grounds of appeal: Grounds of ITA No. 1538/D/14 Quantum appeal: 1. Whether in the facts and circumstances of the case, the ld. CIT(Appeals) is justified in allowing the long term capital loss of ₹ 45,69,287/- on the sale of 5,800 shares of M/s R.B. Credit (P) Ltd. ignoring the fact that the shares having face value of ₹ 10/- were acquired by the assessee in Date of Hearing 03.12.2015 Date of Pronouncement 11.12.2015 March, 2000 and January 2002 at a premium of ₹ 40/- (50,000 shares) and ₹ 240/- (8,000 shares) but the sale was effected by the assessee at the face value of ₹ 10/- only on 29/09/2013 and 20/10/2013 respectively. 2. That the appellant craves leave to add, modify and/or delete any grounds of appeal. 3. In the facts and circumstances of the case, the order of the CIT(A), Meerut may be set aside and that of the Assessing Officer restored. Grounds of ITA No. 3936/D/14 Penalty appeal: 1. Whether in the facts and circumstances of the case, the ld. CIT(A) is justified in deleting the penalty of ₹ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been made clear. Therefore, we are of the opinion that this matter is required to be restored to the file of Assessing Officer for giving appropriate findings on the purchase and the sale of shares on which such long term capital loss has been claimed by the assessee. After giving a reasonable opportunity of hearing to the assessee, the Assessing Officer will re-decide this issue in accordance with law. We, direct accordingly. 2.3. Following the directions of this Tribunal, the assessee was called upon vide letter dated 01/11/2010 by the ld.AO. 2.4. Accordingly, the assessee filed certain reply on 10/11/2010. The ld. Assessing Officer issued notice u/s 142(1) as the facts were insufficient to reconsider the issue as per the directions of this Tribunal. The ld. AR did not appear on the date fixed. The ld. Assessing Officer, therefore, relying upon the findings of the Assessing Officer in the assessment order, completed the assessment on the total income at ₹ 10,48,550/-. 3. Aggrieved by the order of the Assessing Officer the assessee preferred an appeal before the ld. CIT(A). Before the ld. CIT(A) the assessee filed an affidavit stating that, the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ld. AR that Shri Ashish Gupta is the brother of assessee herein, and the transactions in shares were similar in both these cases and that this Tribunal has dismissed the appeal filed by the Revenue in the case of ACIT vs. Shri. Ashish Gupta in ITA no.225/D/2012 vide order dated 9.08.2012 and ACIT vs. Sh. Aditya Gupta in ITA no. 4938/D/2011 for asst.yr.2002-03, vide order dated 02.2015. 5.1. The ld. AR submitted that the long term capital gain or loss is to be computed in the manner as laid down in section 48 of the Act as in the section the expression used is full value of consideration received or accrued , meaning thereby there is no scope of any fair market value or estimation. 5.2. It has been submitted before us that there is no material on record on the basis of which it can be said that the assessee had received over and above the agreed consideration. The ld.AR submitted that, it is a well settled position in law that, in a case of sale, the Assessing Officer has no power to replace the value of consideration agreed between the parties. In support of this proposition reliance has been placed on the following decision: i. Nilofar Singh 309 ITR 233 (Del.); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted hereinabove, by the ld. AR. 6.4. Similar was the situation in the case of Shri Ashish Gupta (supra) and Aditya Gupta (supra), brothers of assessee. This Tribunal in para 7 of the order had adjudicated identical issue in Aditya Gupta(supra), by relying on the order of Ashish Gupta (Supra) as under: 8. We have heard the rival submissions of both the parties and have gone through the material available on record. We have observed that the case of the assessee had traveled upto the stage of ITAT and Hon ble ITAT vide its order dated 16.12.2010 had remanded back to the office of ld. CIT(A) being a nonspeaking order of ld. CIT(A) and again in the second round of appeal the case has reached before us. We have carefully considered the facts of the case and have gone through the assessment order, the ld. CIT(A s order and order of the Hon ble ITAT, we have noted that sale and purchase of share was done through cheques and transfer of shares was properly supported by the transfer deeds and complete formalities were done by the issuing company in respect of allotment of shares and transfer of shares. Nothing adverse was brought by the Assessing Officer except his belief that asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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