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TMI Blog2017 (10) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... n fact, in this case there is a mere transfer of shares of a company and no stamp duty appears to be payable towards plot of land. The procedure adopted by the AO in determining the capital gain from the said transaction is not tenable under the law as it stood applicable for the current assessment year. We are of the view that section 2(47)(vi) is applicable in the cases where the asset in question is like a group of houses owned by a company and each shareholder is allotted a house for his personal enjoyment similar to what is prevalent in housing cooperative societies. However, there is no necessity to adjudicate on this issue as even if it is assumed that transfer of shares of the said company amounted to transfer of plot of land, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the course of hearing of the appeal. 3. The brief facts of the case are that assessee filed his return of income on 30.9.2008 declaring income of ₹ 19,18,630/-. Subsequently, first notice u/s. 143(2) of the Income Tax Act, 1961 (hereinafter referred as the Act) was issued on 16.7.2010 and duly served upon the assessee. After that, a questionnaire alongwith notice u/s. 143(2) of the Act was issued on 09.8.2010 and required the part details. In response thereto, the A.R. of the assessee filed the details/documents from time to time which have been examined by the AO. After the search operation, vide his letter dated 26.9.2008, the assessee surrendered an amount of ₹ 2,50,00,000/- as his additional income for AY 2009-10 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uence of above events clearly suggest that the purpose of transfer of entire share holding of M/s Raj Refullers and Fire Safety Equipment Private Limited to Mrs. Deepti Arora Sh. Ramesh Kumar was only for transferring the land belonging to M/s Raj Refullers and Fire Safety Equipment Private Limited. The transfer of shares of Raj Refullers and Fire Safety Equipment Private Limited is merely the mode or the vehicle to transfer the land. Further, the Section 2(47)(vi) of the I.T. Act, 1961 provides that 'transfer' in relation to the capital asset includes:- Any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the immovable property. In view of above. it was held by the AO that the Capital gains shall be chargeable as if the land was transferred and not shares. As per provisions of section SOC. in cases where the sale consideration is less than the value at which stamp duty is chargeable by the Sub- Registrar, the capital gains is to be computed by taking the value at which stamp duty is chargeable. To ascertain the fair market value of the property, matter was referred to DVO, Jaipur by the CIT CC- 12 which has not been received. Hence, he decided the sale consideration as per the circle rate prevailing at the time. In one related case of the same group, the circle rate were gathered from the office of Tehsildar, Gurgaon for the F.Y. 2005-06. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO and reiterated the contentions raised in the grounds of appeal. 5. On the contrary, Ld. Counsel of the assessee relied upon the order of the Ld. CIT(A). 6. We have heard both the parties and perused the relevant records, especially the impugned order. We find that during the course of the search, a share purchase agreement was found. The sale consideration accounted by the assessee in his R/I, is same as that was mentioned in the said agreement. No evidences have been found either during the search, or thereafter, about any extra amount changing hands. In the absence of any such evidence, the AO has attempted to bring to tax capital gain on the basis of the fair market value of the plot of land as per section 50C of the IT A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this case there is a mere transfer of shares of a company and no stamp duty appears to be payable towards plot of land. In the assessment order also it is nowhere stated that any state government authority has adopted a particular value at the time of payment of stamp duty by the parties to the said share purchase agreement. We further find that Section 50C has undergone amendment with effect from 01/10/2009. The word 'assessed or assessable' has been inserted in place of 'assessed' appearing before that date. If the transaction were to have taken place after 01/10/2009, it would have been possible to take the value which could have been assessable by the stamp valuation authority even in cases where such value has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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