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TMI Blog2017 (5) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... had claimed loss of ₹ 80,88,29,697/- on the inquiry from the Bench. Ld. AR stated that the assessee had not utilized the benefit of this loss till date. Therefore, all these factual aspects need to be looked into prior to finalization of the issue. Hence, in the interest of justice and equity, the issues under appeal are restored back to the file of ld. CIT(A) to decide de novo. Accordingly, the appeal of the revenue is allowed for statistical purposes only. - ITA No. 792/JP/2014 - - - Dated:- 27-4-2017 - SHRI BHAGCHAND, AM and SHRI KUL BHARAT, JM For The Revenue : Shri Varinder Mehta (CIT) For The Assessee : Shri Himanshu Goyal (CA) ORDER PER: BHAGCHAND, A.M. This is the appeal filed by the revenue emanates from the order of the ld. CIT(A)-II, Jaipur dated 15/09/2014 for the A.Y. 2006-07 wherein the revenue has taken only one effective ground of appeal, which is as under: 1. Whether on the facts and in the circumstances of the case and in law the ld. CIT(A) erred in holding that no basis has been given for adopting the sale consideration of shares to be the index cost of acquisition. Without appreciating the fact that during the course of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an explanation regarding the names / signatures of authorized signatory and addresses of the company being different in the deed of assignment and the confirmation. Furthermore, it has been stated by the appellant no basis has been given for adopting the sale consideration of the shares to be the indexed cost of acquisition. I agree with the appellant that there is no basis or documentary evidence to adopt the sale value of shares to be the indexed cost of acquisition except to nullify the long term capital loss claimed by the assessee. Even the intrinsic value of shares cannot be ascertained in the absence of computation of valuation of shares. There is no material on record to indicate that the sale consideration of shares is suppressed/ underreported. In view of the above, the action of the Assessing Officer of disallowing the long term capital loss, on sale of shares of M/s MSIL, is not upheld. Ground No. 3 4 is allowed. 4. Now the revenue is in appeal before us. The ld CIT DR has vehemently supported the order of the Assessing Officer and submitted that the ld. CIT(A) was not justified in granting relief to the assessee for the reason that the financial condition of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is an undisputed fact that the MISL has been declared as a sick company by the BIFR on 17.11.2005 due to heavy losses suffered during the period of worldwide recession in the textile industry during the period 1997- 98 to 2006-07 which clearly justify the reason for low sale price of ₹ 2/- and further the net-worth of the assessee company is (-) ₹ 14,726/-Ld. AO cannot raise the issue why the amount is fixed at ₹ 2/- and not more than ₹ 2/- when d) Further assessee has submitted PAN No, name addresses, Income Tax returns of these companies which could be used by the AO to make independent enquiries. e) Your honour it is a fundamental principle that if it is alleged that assessee has received less consideration the revenue should have proved that assessee has received more consideration. The onus is upon the revenue to prove that something more has been given to the assessee. The matter has been left only by making an allegation and addition has been made in surmises and conjectures ignoring the facts on records. Reliance being placed on the judgement of Hon ble Apex Court in the case of K.P. Varghese v. Income-tax Officer 131 ITR 597 (SC) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no material on record to indicate that the sale consideration of shares is suppressed/ under reported. g) Thus. Ld. CIT(A) has passed the well- reasoned order and same is liable to stand. ii. The second allegation is names/ signatures of the authorized signatories and addresses of the companies to whom the shares were sold were different from which were mentioned in the deed of assignment. a) This allegation has also been dealt by the CIT(A) at Pg. 8 and Para 4.3 of the order and he relied upon the submissions made by the assessee. Before the CIT(A), assessee has given a genuine reason for the above mentioned differences. Submission of the assessee is quoted at Pg. 7 Last para of the CIT(A) order. b) Assessee submitted that the deed of assignment is dated. 21.3.2006 and the deed of assignment has been signed by the director/Authorised signatory on the date of execution of deed. So far as signing of confirmation is concerned, the same is as per letter dated. 14.11.2011 and has been signed by the Director/ Authorised signatory. Simply because the signature is different after a gap of over 5 years it would not mean that the confirmation is incorrect. Thus, alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 48 is very clear where a distinction has been made between the total consideration and the fair market value. It is held that in section 48 the words used are total consideration and hence fair market value cannot be substituted purpose of computation of capital gain. The ld. AR relied on the following case laws: 1. CIT Vs. George Hendersonb and Co, Ltd. (1967) 66 ITR 622 (SC) 2. CIT, Calcutta Vs. Gillanders Arbuthnot and Co. (1973) 87 ITR 407 (SC) 3. CIT Vs. Smt. Nilofer I Singh (2009) 309 ITR 233 (Del). 4. CIT Vs. M/s Gujarat Nre Coke Limited ITA No. 193 of 2013, GA No. 3485 of 2013 dated 06/3/2014 (Cal High Court). 5. CIT Vs. Puneet Sabharwal (2011) 338 ITR 485 (Del) 6. CIT Vs. Abhinav Kumar Mittal (2013) 351 ITR 20 (Del) 7. Dev Kumar Jain Vs ITO Anr. (2009) 309 ITR 240 (Del) 8. CIT Delhi Vs Shakul;tala Devi (2009) 316 ITR 46 (Del). 9. CIT Vs Smt. Suraj Devi (2010) 328 ITR 604 (Del) 10. CIT Vs. Prem Nath Nagpal (2007) 214 CTR 51 (DHC) 11. CIT Vs. Ashok Khetrapal (2007) 294 ITR 143 (Del.) 12. CIT Vs. Dinesh Jain HUF (2013) 352 ITR 0629 (Del) 13. CIT Vs. Mahesh Kumar (2011) 196 Taxman 415 (Del.) 14. CIT Vs. Agile Properties P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... astra. The subscribed share capital of this company was ₹ 10.00 lacs. The reserve and surplus declared were ₹ 81,96,033/-. The loan funds declared was not ₹ 91,96,033/-. The inventory shown were ₹ 5,11,27,069/-. The ld AR was asked to file the details of the inventories during the appellate proceedings but he has failed to do so. The sales declared were of ₹ 5,53,89,406/- but the details of the same was also not made available. Thus, the specific details of script-wise asked by the Bench with regard to the sales and the closing stock (inventory), which were not submitted. The confirmation letter submitted from Invitation Investment Pvt. Ltd. dated 14/11/2011 placed at page No. 129 of the paper book shows the address of the company as 14-A, paper Box Estate, Mahakali Caves Road, Andheri (East), Mumbai 400093. The address given in the return of income filed for assessment year 2007-08 placed at page No. 131 of the paper book of Invitation Investment Pvt. Ltd. at 7/A, Ground Floor, Dhan Bhavan No. 1, Gazdar Street, Chira Bazar, Mumbai, Maharastra. Thus, there were three different addresses on three documents. The income declared in the assessment year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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