2006 (7) TMI 147

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..... 2005, the Commissioner described the transaction of the assessee as "dividend stripping", - disallowance of a loss under section 94(7) of the Act in respect of such a transaction was effective only from the assessment year 2002-03, while we are concerned with the assessment year 2001-02. There was, therefore, a gap in the law which appears to have been exploited by the assessee. The Legislature appears to have recognised the lacuna and taken steps to rectify it. But that does not mean that the decision of the Assessing Officer based on the law as it was can be said to be erroneous – since is nobody's case that the sale and purchase of the mutual funds was not at the market price, revenue appeal is dismissed - - - - - Dated:- 10-7-2006 - .....

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..... take advantage of the tax-free dividend; the genuineness of the transaction was not doubted by the Assessing Officer and finally there could be two opinions on the issue whether the assessee had resorted to a colourable device or not. The Assessing Officer had taken the view that it was not a colourable device and this was a plausible view. It may be that the Commissioner had a different view, but that does not mean that the view of the Assessing Officer was wrong or that it deserved to be set aside. The scope of the revisionary power of the Commissioner under section 263 of the Act was considered by the Supreme Court in Malabar Industrial Co. Ltd. v. CIT [2000] 243 ITR 83. After extracting section 263 of the Act, the Supreme Court observ .....

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..... stage that disallowance of a loss under section 94(7) of the Act in respect of such a transaction was effective only from the assessment year 2002-03, while we are concerned with the assessment year 2001-02. There was, therefore, a gap in the law which appears to have been exploited by the assessee. The Legislature appears to have recognised the lacuna and taken steps to rectify it. But that does not mean that the decision of the Assessing Officer based on the law as it was can be said to be erroneous. Merely because the assessee had taken the benefit of the lacuna, it will not raise a substantial question of law for the consideration of this court. It is also worth noting that it is nobody's case that the sale and purchase of the mutual .....

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