DCIT, Circle - 9, Kolkata, Kolkata V. M/s. Cent Percent Investment Ltd., Kolkata

ITA 1437/KOL/2010

• Counselvise Citation: 143723514 RSA 2010
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 13-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: S K TULSIYAN
• Keywords: Cost of acquisition; Fair market value; Sham transactions
• Section: 148

Judgement Text

, , , , , , ,, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [ . . . . . . . . , ,, , , ,, , . . . . . .. . ! ! ! ! , ' ' ' ' ] [BEFORE HONBLE SHRI B. R. MITTAL, JM & HONBLE SHRI S.V. MEHROTRA, AM] #$ #$ #$ #$ / I.T.A NO. 1437/KOL/2010 %& '() %& '() %& '() %& '()/ // / ASSESSMENT YEAR : 2007-08 DY. COMMISSIONER OF INCOME TAX -VS.- M/S. CENT PERCENT INVESTMENT LIMITED CIRCLE-9, KOLKATA. KOLKATA [PAN : AABCC 0462C] [ +, +, +, +, /APPELLANT ] ]] ] [ ./+, ./+, ./+, ./+,/ // / RESPONDENT ] ]] ] +, +, +, +, / FOR THE APPELLANT : SHRI S.K. ROY ./+, ./+, ./+, ./+, / FOR THE RESPONDENT : SHRI S.K. TULSIYAN 0 /ORDER . . . . . .. . ! ! ! ! , ' ' ' ' PER S. V. MEHROTRA, A. M. THE DEPARTMENT HAS PREFERRED THIS APPEAL FOR ASSESS MENT YEAR 2007-08 AGAINST ORDER OF LD. CIT(A)-VIII, KOLKATA DATED 11.05.2010. 2. THE GROUNDS OF APPEAL RAISED BY THE DEPARTMENT R EAD AS UNDER :- (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN L AW, WHETHER THE LD. CIT(A) WAS RIGHT IN HOLDING THAT THE SALE VALUE OF UNQUOTED SHARE OF RS.2,41,57,700/- INSTEAD OF VALUE CONSIDERED AT RS. 4,00,00,000/- BY A.O. (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, WHETHER THE LD. CIT(A) WAS RIGHT IN HOLDING THAT LONG TERM CAPITAL LOSS OF RS.1,30,96,496/- FOR SALE OF UNQUOTED SHARE WHICH W AS GROUP CONCERNED COMPANY INSTEAD OF CAPITAL GAIN OF RS.27,45,865/- A S DETERMINED BY THE ASSESSING OFFICER. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, N BFC COMPANY, HAD INVESTED IN UNQUOTED SHARES WHICH WERE A GROUP CONCERN COMPANY AND THOSE SHARES WERE ALSO SOLD TO ITS GROUP CONCERN COMPANY. ASSESSING OFFICER HAS OBSERVED THAT THE RA TES WERE NOT DETERMINED ON THE BASIS OF ITA NO. 1437/KOL/2010 2 MARKET VALUE AS THERE WAS NO MARKET OF THE UNQUOTED SHARES. DETAILS OF TRANSACTIONS OF SHARES WERE AS UNDER :- SCRIPT SOLD YEAR OF PURCHASE PURCHASE PRICE SALE PRICE TO WHOM SOLD BERI MERCURIO 1995-96 & 1996-97 110/- PER SHARE 132.25 PER SHARE SWEET MARKETING (INDIA) P. LTD. & BERI UNITED P. LTD. BERLIN SECURITIES 1995-96 & 2000-01 110/- PER SHARE 110/- PER SHARE BERI UNITED METALS P. LTD. MAJOR METALS 1998-99 50/- PER SHARE 66.20 PER SHARE SWEET MARKETING (INDIA) P. LTD. BERI FINVEST 1997-98 & 2000-01 110/- PER SHARE 60/- PER SHARE SWEET MARKETING (INDIA) P. LTD. ASSESSING OFFICER FURTHER NOTICED FROM THE DETAILS OF INVESTMENT IN UNQUOTED SHARES OF ASSESSEE- COMPANY THAT ASSESSEE-COMPANY HAD INVESTED IN SWEAT MARKETING (INDIA) PVT. LTD. IN 1990. FURTHER IT WAS ALSO FOUND THAT SWEAT MARKETING (IND IA) PVT. LTD. WAS ALSO A SHAREHOLDER OF BERI FINVEST PVT. LTD. AND ITS HOLDING AS ON 29.09.2007 WAS 47,300 SHARES OUT OF 3,,44,100 SHARES I.E. 13.74%. ASSESSING OFFICER AFTER EXAMINING THE ASSES SEES INVESTMENT AND SALE OF ITS HOLDING CONCLUDED THAT ASSESSEE HAD PURCHASED SHARES OF BER I FINVEST PVT.LTD. @ RS.110/- IN THE YEAR 1997-98 & 2000-01 AND IT WAS SOLD @ RS.60/- TO THO SE COMPANIES, WHICH WERE CLOSELY HELD COMPANIES. FROM THESE FACTS, ASSESSING OFFICER POIN TED OUT THAT ASSESSEE-COMPANY WAS SELLING SHARES TO ITS GROUP COMPANY AND THOSE SHARES WERE S OLD AT SUCH A RATE SO THAT NET RESULT BECOMES LOSS AFTER TAKING INDEXATION BENEFIT. THE ASSESSEE HAD CLAIMED LONG TERM CAPITAL LOSS OF RS.1,79,27,000/- IN THE CASE OF BERI FINVEST PVT. L TD. BY SELLING SHARES TO ITS GROUP COMPANIES. ASSESSING OFFICER HAS OBSERVED AS UNDER:- IN THE COURSE OF THE HEARING, ASSESSEE HAS STATED THAT ALL THE SHARES ARE SOLD ABOVE THE BOOK VALUE THEN WHY THOSE SHARES ARE NOT PURCH ASED AT BOOK VALUE. AS A BUSINESS PRUDENCE IT IS SAID THAT ANY INVESTMENT WA S DONE TO EARN INCOME. IN THE INSTANT CASE INVESTMENT WAS DONE BEFORE 7-8 YEARS I N ITS GROUP COMPANY AND AFTER THAT IT WAS SOLD TO ITS GROUP COMPANY AT SUCH RATE THAT AFTER TAXATION IT WILL RESULT IN LOSS. FURTHER, IN SOME CASES SHARES WERE SOLD BELOW 50% OF THE PURCHASE PRICE. EVERY PERSON INVESTS WITH THE AIM TO EARN AT LEAST 10-12% RATE OF RETURN. IN THE INSTANT CASE, ASSESSEE HAS SOLD UNQUOTED SHARES WHO SE INDEX COST OF ACQUISITION IS RS.9,54,03,000/- AT RS.2,41,57,700/- I.E. AT A LOSS OF RS.7,12,45,300/- THAT TOO ITS GROUP COMPANY. FURTHER, IT WAS ALSO FOUND THAT INDEX COST OF ACQUI SITION WAS NOT CORRECTLY ITA NO. 1437/KOL/2010 3 CALCULATED. EXACT AMOUNT OF INDEX OF ACQUISITION IS AS UNDER :- COMPANY YEAR OF INVESTMENT QTY. VALUE OF INVESTMENT INDEX COST OF ACQUISITION. BERLIN SECURITIES 1995-96 6000 6,60,000/- 12,19,004/- BERLIN SECURITIES 2000-01 15000 16,50,000/- 21,09,236/- BERI MERCURIO 1995-96 34000 37,40,000/- 69,70,686/- BERI MERCURIO 1996-97 40000 44,00,000/- 74,87,213/- BERI FINVEST 1997-98 47000 51,70,000/- 81,06,4 35/- BERI FINVEST 2000-01 15000 16,50,000/- 21,09,2 36/- MAJOR METALS LTD. 1998-99 126000 63,00,000/- 93,15,385/- TOTAL INDEX COST OF ACQUISITION 3,72,54 ,135/- ON THE BASIS OF ABOVE, I CONSIDER TOTAL SALE PRICE OF UNQUOTED SHARES AS RS.4,00,00,000/-. AS A RESULT, ASSESSEE HAS EARNED LONG TERM CAPITAL GAIN OF RS.27,45,865/- AND IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. BEFORE LD. CIT(A) ASSESSEE HAD, INTER ALIA, SUBMITT ED THAT LONG TERM CAPITAL GAIN/LOSS IS TO BE COMPUTED IN THE MANNER LAID DOWN IN SECTION 48 OF T HE INCOME TAX ACT AS PER WHICH SALE CONSIDERATION IS THAT WHICH IS ACTUALLY RECEIVED OR ACCRUED AND, THEREFORE, THERE WAS NO SCOPE FOR ESTIMATION AS DONE BY ASSESSING OFFICER. LD. CIT(A) DELETED THE ADDITION FOR THE FOLLOWING REASONS :- (I) NO ENQUIRY WAS VISIBLE ON THE FACE OF THE ASSESSMEN T ORDER TO INDICATE THAT THE PHYSICAL PROCESS OF TRANSACTION HAD BEEN CHALLENGED BY THE ASSESSING OFFICER. (II) ASSESSING OFFICER HAD NOT DISPUTED THE ASSESSEES C ONTENTION THAT ALL THE SHARES WERE SOLD ABOVE THE BOOK VALUE. HIS POINT WAS THAT THEY WERE NOT PURCHASED AT BOOK VALUE. (III) PURCHASE TRANSACTIONS HAD BEEN ACCEPTED BY THE DEPA RTMENT AS BONAFIDE IN THE YEARS OF PURCHASE. (IV) ALL INVESTMENTS CAN NOT LEAD TO A POSITIVE RETURN. (V) ASSESSING OFFICER DID NOT POINT OUT ANY CIRCUMSTANC ES WHICH COULD LOGICALLY LEAD TO BELIEVE THAT THE CONSIDERATION AT WHICH THE SHARES WERE SOLD BY THE ASSESSEE SHOULD HAVE BEEN HIGHER. SUCH AN ANALYSIS WAS ABSOLUTELY N ECESSARY BEFORE ATTEMPTING ANY ESTIMATION. ITA NO. 1437/KOL/2010 4 (VI) BASED ON WHICH THE ASSESSING OFFICER ESTIMATED THE SALE PRICE OF THE SHARES WAS NOT AT ALL MENTIONED IN THE ASSESSMENT ORDER. (VII) NO EVIDENCE BROUGHT ON RECORD BY THE ASSESSING OFFI CER WHICH COULD LEAD TO A LOGICAL CONCLUSION THAT THE SALE CONSIDERATION HAD BEEN UNDER STATED BY THE ASSESSEE. (VIII) LD. CIT(A) FOLLOWED THE DECISION OF HONBLE DELHI H IGH COURT IN THE CASE OF DEV KUMAR JAIN VS. ITO [2009] 309 ITR 240 (DELHI) AND I N THE CASE OF CIT VS. SMT. NILOFER I. SINGH [2009] 309 ITR 233 (DELHI). 4. LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT T HE IMPUGNED TRANSACTIONS HAVE TAKEN PLACE BETWEEN CLOSELY HELD COMPANIES AND, THEREFORE , ASSESSING OFFICER WAS JUSTIFIED IN TAKING THE SALE CONSIDERATION AT RS.4.00 CRORES INSTEAD OF RS. 2,41,57,700/- SHOWN BY THE ASSESSEE. HE RELIED ON THE ASSESSMENT ORDER. 5. LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF K.P. VARGHESE VS. ITO [1981] 131 ITR 597 (SC), SALE CONSIDERATION AS DISCLOSED BY THE ASSESSEE COULD NO T BE ALTERED. ASSESSING OFFICER WAS BOUND TO ACCEPT THE SALE CONSIDERATION DECLARED BY THE ASSES SEE WITHOUT BOTHERING ABOUT ADEQUACY OR INADEQUACY OF THE SAME. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORDS OF THE CASE. THERE IS NO DISPUTE THAT SHARES HAD BEEN SOLD BY ASSESSEE-COMPANY TO CLOSELY HELD COMPANY AND IN THE PROCESS ASSESSEE HAD CLAIMED LON G TERM CAPITAL LOSS OF RS.1,17,27,000/-. THE MAIN DISPUTE IS REGARDING FIXATION OF PRICE OF SHAR ES SOLD. THE ASSESSING OFFICER DID NOT ACCEPT THE MODE OF FIXATION OF SALE PRICE BY ASSESSEE AND, THE REFORE, ESTIMATED THE SALE CONSIDERATION. THE FIXATION OF PRICE I.E. SALEABLE PRICE OF UNQUOTED S HARES DEPENDS UPON THE NET ASSETS OF THE COMPANY. THE PRICE OF UNQUOTED SHARES IS ALWAYS AMENABLE TO MANIPULATION BY THE CLOSED PERSONS TO AVOID TAXABILITY OF THE GAIN ON THE TRANSFER BY FIXING PR ICE IN A MANNER THAT IT SUITS THE MOST. THE VALUE O F SHARES AS PER NAV METHOD IS MOST APPROPRIATE METHOD OF VALUATION IN SUCH CIRCUMSTANCES. THE REVENUE AUTHORITIES UNDER SUCH CIRCUMSTANCES ARE EN TITLED TO QUESTION THE CORRECTNESS OF PRICE FIXATION IN ORDER TO FIND OUT THE REAL INTENTION OF THE ASSESSEE. THE TAXING AUTHORITIES ARE NOT ONLY ENTITLED TO BUT DUTY BOUND TO DETERMINE THE TRUE IN TENTIONS RESULTING FROM THE TRANSACTION. IF THE PARTIES HAD CHOSEN TO CONCEAL THE INCOME BY A DEVIC E, IT IS ALWAYS OPEN TO THE TAXING AUTHORITIES TO ITA NO. 1437/KOL/2010 5 UNVEIL THE DEVICE. IN THIS REGARD, WE MAY REFER TO THE DECISION OF I.T.A.T., KOLKATA BENCH IN THE CASE OF EDWARD KEVENTER (P) LTD. VS. DCIT [2004] 89 ITD 347 (KOL.). IN THIS DECISION THE TRIBUNAL HAS EXAMINED THE LEGAL POSITION VIS--VIS POWERS OF THE INCOME TAX AUTHORITIES IN RELATION TO SHAM TRANSACTIONS AS EMERGING FROM THE VARIOUS JUDICIAL AUTHORITIES AND HAS SUMMARIZED THEM AS BELOW :- (I) THE TAXING AUTHORITY IS ENTITLED AND IS INDE ED BOUND TO DETERMINE THE TRUE LEGAL RELATION RESULTING FROM A TRANSACTION. MOTIVE ALONE CAN NOT MAKE UNLAWFUL WHAT THE LAW ALLOWS BUT AT THE SAME TIME IF THERE I S PRESENCE OF BAD FAITH OR FRAUD OR LACK OF BONAFIDE IN THE TRANSACTION, THE TAXING AUTHORITIES ARE NOT FOUND TO CONSIDER THE LEGAL EFFECT OF THE TRANSACTION. IF TH E ASSESSEES ACTS ARE NOT BONAFIDE BUT ARE AMBIGUOUS, SHAM OR MAKE-BELIEVE, IT IS OPEN TO THE TAXING AUTHORITIES TO QUESTION AND DOUBT THE TRANSACTION AND TO FIND OUT THE TRUE, CORRECT MEANING AND REAL MEANING AND RESULT THEREOF. THE MAKE-BELIEVE T RANSACTIONS THOUGH SEEMINGLY LEGAL, ARE NOT FREE FROM JUDICIAL SCRUTINY. II) IN THE CONTEXT OF DETERMINING WHETHER A TRANSAC TION IS SHAM OR ILLUSORY OR A DEVICE OR A RUSE OR A MAKE-BELIEVE, THE TAXING AUTH ORITIES ARE ENTITLED TO PENETRATE THE VEIL COVETING IT AND ASCERTAIN THE TRUTH. THE T AXING AUTHORITIES ARE NOT REQUIRED TO PUT ON BLINKERS WHILE LOOKING AT THE DOCUMENTS P RODUCED BEFORE THEM. THEY ARE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY OF THE RECITALS MADE ON THE DOCUMENTS. IT IS THE DUTY OF T HE COURT IN EVERY CASE, WHERE INGENUITY IS EXPENDED TO AVOID FACING ANY WELFARE L EGISLATIONS, TO GET BEHIND THE SMOKE-SCREEN AND DISCOVER THE TRUE STATE OF AFFAIR S. THE COURT IS NOT TO BE SATISFIED WITH THE FORM AND LEAVE ALONE THE SUBSTANCE OF THE TRANSACTIONS. (III) THE TRANSACTIONS SHOULD NOT BE SEEN IN ISOLAT ION BUT CONSONANCE WITH EACH OTHER. THE MATTER MAY ALSO BE CONSIDERED AND DECIDE D UPON IN THE LIGHT OF HUMAN PROBABILITIES AND THE SURROUNDING FACTS AND CIRCUMS TANCES. IV) THE PRINCIPLE WHAT IS APPARENT IS REAL IS NOT SACROSANCT AND MAY BE OVERLOOKED IF SURROUNDING CIRCUMSTANCES SO SUGGEST. (V) IT IS TRUE THAT EVERY PERSON ENTITLED TO SO ARR ANGE HIS AFFAIRS AS TO. AVOID TAXATION BUT THE ARRANGEMENT MUST BE REAL OR BONAFI DE AND NOT A SHAM OR MAKE- BELIEVE OR COLOURABLE DEVICE. TAX PLANNING, MAY BE LEGITIMATE PROVIDED IT IS WITHIN THE FRAME-WORK OF THE LAW. COLOURABLE DEVICE S CANNOT BE PART OF TAX PLANNING AND IT IS WRONG TO ENCOURAGE OR ENTERTAIN THE BELIEF THAT IT IS HONOURABLE TO AVOID THE PAYMENT OF TAX OR TO OBTAIN ANY ADVAN TAGE OR BENEFIT FOR TAX PURPOSE BY DUBIOUS METHOD. (VI) A COLOURABLE TRANSACTION IS ONE WHICH IS SEEM INGLY VALID, BUT A FEIGNED OR COUNTERFEIT TRANSACTION ENTERED INTO FOR SOME ULTER IOR PURPOSES. THE TRANSACTION IS TO BE DECIDED AS SUCH BY REFERENCE MATERIAL OR EVID ENCE OR CIRCUMSTANCES OF EACH AND EVERY CASE. ITA NO. 1437/KOL/2010 6 (VII) THE PRINCIPLE ON THE MATTER OF TAX EVASION AN D TAX AVOIDANCE AS LAID DOWN BY THE SUPREME COURT IN LANDMARK JUDGMENT IN THE CASE OF MCDOWELL & CO. LTD. V. CTO [1985] 154 ITR 148/22 TAXMAN 11 (SC) CAN HAVE I TS APPLICATION ONLY WHERE COLOURABLE OR ARTIFICIA1 DEVICES ARE ADOPTED AND NO T TO THE TRANSACTIONS WHICH ARE OTHERWISE LEGITIMATE AND ARE UNDERTAKEN BONA FIDE I N THE ORDINARY COURSE OF BUSINESS. IN OTHER WORDS, MCDOWELI,& CO. LTD.S CASE (SUPRA) CAN HAVE ITS APPLICATION WHERE THE DEVICES THOUGH SEEMINGLY LEGA L ARE ADOPTED IN COLLUSION OR WHERE DEVICES ADOPTED ARE NOT GENUINE OR BONA FIDE BUT ARE SHAM, MAKE-BELIEVE OR CAMOUFLAGED TO ESCAPE THE LIABILITY FOR TAX OR TO O BTAIN CERTAIN BENEFIT FOR TAX PURPOSE. LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE HAS VEHEMENTLY RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF K. P. VARGHESE VS. ITO [1981] 131 ITR 597 (SC). IN THIS CASE FACTS WERE THAT THE ASSESSEE WAS THE OWNER OF A HOUSE SIT UATED IN ERNAKULAM, WHICH HE HAD PURCHASED IN 1958 FOR THE PRICE OF RS.16,500/-. ON 25 TH DECEMBER, 1965, ASSESSEE SOLD THE HOUSE FOR THE SA ME PRICE OF RS.16,500/- TO HIS DAUGHTER-IN-LAW AND 5 O F HIS CHILDREN. THE ASSESSMENTS WERE COMPLETED BUT SUBSEQUENTLY NOTICE UNDER SECTION 148 WAS ISSUED FOR FIXING FAIR MARKET VALUE OF THE ASSESSEE ON 25.12.1965 AT RS.65,000/- FOR WHICH THE HOUSE WAS SOLD AND TO ASSESS DIFFERENCE OF RS.48,500/- AS CAPITAL GAINS IN THE HANDS OF THE AS SESSEE. THERE WAS NO DISPUTE REGARDING BONAFIDES OF THE TRANSACTION BECAUSE OF THE RELATIONSHIP BETW EEN TRANSFEROR AND TRANSFEREE. ONLY DISPUTE WAS WHETHER MARKET VALUE COULD BE SUBSTITUTED IN PLACE OF ACTUAL SALE CONSIDERATION. IN THE BACKGROUND OF THESE FACTS, HONBLE SUPREME COURT AFTER CONSIDE RING THE PROVISIONS OF SECTION 52(2), INTER ALIA, OBSERVED AS UNDER :- WE THINK THAT, HAVING REGARD TO THIS WELL-RECOG NISED RULE OF INTER OF INTERPRETATION, A FAIR AND REASONABLE CONSTRUCTION OF S. 52, SUB-S. (2), WOULD BE TO READ INTO IT A CONDITION THAT IT WOULD APPLY ONLY W HERE THE CONSIDERATION FOR THE TRANSFER IS UNDERSTATED OR, IN OTHER WORDS, THE ASS ESSEE HAS ACTUALLY RECEIVED A LARGER CONSIDERATION FOR THE TRANSFER THAN WHAT IS DECLARED IN THE INSTRUMENT OF TRANSFER AND IT WOULD HAVE NO APPLICATION IN THE CA SE OF A BONAFIDE TRANSACTION WHERE THE FULL VALUE OF THE CONSIDERATION FOR THE T RANSFER IS CORRECTLY DECLARED BY THE ASSESSEE THUS, HONBLE SUPREME COURT HAS HELD THAT THE PRINC IPLE LAID DOWN BY IT WILL APPLY ONLY IN THE CASE OF BONAFIDE TRANSACTIONS. IN THE PRESENT CASE, ASSESSING OFFICER WAS OF THE OPINION THAT FIXATION OF SALE PRICE WAS DONE WITH ULTERIOR MOTIV E TO CLAIM LOSS AND, THUS, WAS NOT BONAFIDE. IN ORDER TO FIND OUT WHETHER THE TRANSACTIONS WERE BON AFIDE OR NOT, WE HAVE TO EXAMINE WHETHER THE SHARES WERE SOLD AT A PRICE MORE THAN THE BOOK VALU E OR NOT. IN THIS REGARD, WE FIND THAT ASSESSING ITA NO. 1437/KOL/2010 7 OFFICER THOUGH HAS TAKEN NOTE OF ASSESSEES SUBMISS IONS WHICH ARE THAT THE SHARES WERE SOLD ABOVE BOOK VALUE BUT HAS NOT GIVEN ACTUAL BOOK VALUE IN T HIS REGARD. HE HAS ALSO, AS RIGHTLY POINTED OUT BY LD. CIT(A), NOT GIVEN ANY BASIS FOR ADOPTING SAL E CONSIDERATION AT RS.4.00 CRORE. CIT(A) HAS OBSERVED THAT ASSESSING OFFICER HAS NOT DISPUTED TH E ASSESSEES CONTENTION IN THIS REGARD. UNDER SUCH CIRCUMSTANCES, IN OUR OPINION, TRIBUNAL HAS NO T ONLY POWER BUT BOUND TO BRING COMPLETE FACTS ON RECORD. ACCORDINGLY, IT IS NECESSARY THAT THE AC TUAL BOOK VALUE OF SHARES TRANSFERRED HAS TO BE BROUGHT ON RECORD. WE, THEREFORE, RESTORE THIS MATT ER BACK TO THE FILE OF THE ASSESSING OFFICER FOR LIMITED PURPOSE OF FINDING OUT THE BOOK VALUE OF SH ARES AND IF HE FINDS THAT THE BOOK VALUE OF SHARES TRANSFERRED IS LESS THAN THE ACTUAL SALE PRI CE, THEN NO ADDITION IS CALLED FOR. 7. IN THE RESULT, APPEAL OF THE DEPARTMENT IS ALLOW ED FOR STATISTICAL PURPOSES IN TERMS OF ABOVE OBSERVATIONS. 0 0 0 0 '1 '1 '1 '1 2 1% 3 4 2 1% 3 4 2 1% 3 4 2 1% 3 4 5' 5' 5' 5' ORDER PRONOUNCED IN THE COURT ON 08. 09. 2011. SD/- SD/- [ . . . . . . . . , ,, , ] [ . . . . . .. . ! ! ! ! , ' ' ' ' ] [ B. R. MITTAL ] [ S.V. MEHROTRA ] JUDICIAL MEMBER ACCOUNTANT MEMBER D ATED : 08 TH SEPTEMBER, 2011. 0 6 .7 87(/ COPY OF THE ORDER FORWARDED TO: 1. +, /APPELLANT : DY. COMMISSIONER OF INCOME TAX, CIRCL E-9, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069. 2 ./+, / RESPONDENT : M/S. CENT PERCENT INVESTMENT LIMITE D, 71, BRBB ROAD, 5 TH FLOOR, R. NO.D-507, KOLKATA-700 001. 3. 0 - % / CIT, 4. 0% ()/ CIT(A), KOLKATA. 5. '3 .%/ DR, KOLKATA BENCHES, KOLKATA [/7 ./ TRUE COPY] 0%1/ BY ORDER, #A /ASSTT REGISTRAR [KKC 'BC %DA E' /SR.PS]