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TMI Blog2017 (2) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... n was not specifically invited to these figures before the Assessing Officer would not by itself justify the Tribunal ignoring the same while dealing with an appeal under the Act. Substitute the 'full value of consideration' received on sale of shares by its 'fair market value' in the subject Assessment Year - Held that:- In the present facts the Revenue accepts the documents but only substitutes the consideration. Therefore, the issue is whether such substitution of full consideration received by fair market value of the asset is permissible. As held by the Tribunal at the relevant time there was no power vested in the authorities under the Act to substitute a full value of consideration received for sale of shares by fair market value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal under Section 260A of the Income Tax Act, 1961 (the Act) takes exception to the order dated 10th May, 2013 passed by the Income Tax Appellate Tribunal (the Tribunal). The impugned order of the Tribunal is in respect of Assessment Year 2005-06. 2. This appeal raises the following questions of law for our consideration :- (i) Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in deleting the addition made under Section 14A of the Income Tax Act, 1961 only on the basis of submissions of assessee without appreciating the fact that at the time of the assessment proceedings the assessee could not prove that the source of making the investments were out of its own funds and not funds on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court in M/s. Godrej Boyce Mfg. Co. Ltd. v/s. DCIT 328 ITR 81 to hold that Rule 8D would not be applicable for the subject assessment year as applied by the Commissioner of Income Tax (Appeals) (CIT(A)). The impugned order further negatived the contention of the Revenue that the investments made by the respondent-assessee were out of borrowed funds. This finding by the Tribunal was based on the basis that own tax free funds available with the respondent-assessee for the year ending 31st March, 2004 was to the extent of ₹ 33.94 crores while tax free investments were to the extent of ₹ 4.71 crores and for the year ending 31st March, 2005 the own tax free funds available are at ₹ 38.05 crores while tax free investments we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ej Boyce Mfg. Co. Ltd. (supra). So far as the said objection is concerned with regard to own funds available with the assessee and the amounts invested in tax free investments, it is very pertinent to note that the Revenue does not dispute the figures as indicated in the balance sheet for year ending 2004 and 2005 and relied upon by the Tribunal. It is also not disputed that the same were a part of the record. Therefore the mere fact that attention was not specifically invited to these figures before the Assessing Officer would not by itself justify the Tribunal ignoring the same while dealing with an appeal under the Act. (d) In the above view, question no.(i) as proposed being concluded by the decision of this Court in Godrej Boyce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the Tribunal further placed reliance upon the decision of its Coordinate bench in the case of MGM Shareholders Benefit Trust (Income Tax Appeal No.316/Mum/2009) rendered on 26th November, 2009 in case of a group company of the respondent-assessee on a similar issue of revaluation of shares by substitution of full value of consideration by fair market value and held the same to be impermissible. (b) The grievance of the Revenue before us is that these transactions are all between companies belonging to the same group. Therefore it is urged that the transaction are colourable transaction and different considerations would apply. (c) At the hearing of the admission, the Revenue did not point out any facts which would evidence tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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