ITO 22(3)(4), MUMBAI V. SURENDRA LUDHANI, MUMBAI

ITA 1519/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 101132 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 05-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Search and seizure; Cost of acquisition
• Section: 148

Judgement Text

ITA NO. 1519/M/2014 1 , IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN ,AM AND AMARJIT SINGH , JM ./ I.T.A. NO . 1519 / MUM/20 1 4 ( / ASSESSMENT YEA R : 200 7 - 08 ) INCOME TAX OFFICE R - 22(3)(4), 3RD FLOOR, TOWER NO.6, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI - 400703 / VS. SHRI S URENDRA LUDHANI, C/O M/S RAVI AND DEV.CAS, 601, 6 TH FLOOR, AURUS CHAMBER, A WING, BEHIND MAHINDRA TOWERS, WORLI, MUMBAI - 400013 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. : AACPL0770G / APPELLANT BY SHRI SUJIT BANGAR, / RSPONDENT BY SHRI DEVENDRA A MEHTA / DATE OF HEARI NG : 2 4 .8.2015 / DATE OF PRONOUNCEMENT: 23 . 9. 201 5 / O R D E R P ER B .R.BASKARAN : THE REVENUE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 31.12. 201 3 PASSED BY LD CIT(A) - 31 , MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2007 - 08 . 2. THE REVENUE IS AGGRIEVED BY THE DECISION OF THE LD.CIT(A) IN DELETING THE ADDITION OF RS.80 LAKHS MADE BY THE AO. 3. WE HEARD THE PARTIES AND PERUSED THE RECORD. REVENUE CARRIED OUT THE SEARCH AND SEIZURE OPERATION IN THE CASE S OF SHRI DHARAMPAL DEMBLA GROUP/M/S DELHIWALLA REAL ESTATE PVT LTD. DURING THE COURSE OF SEARCH OPERATION, IT WAS NOTICED THAT THE ASSESSEE HEREIN HAD RECEIVED A SUM OF RS.80 LAKHS IN CASH. ACCORDINGLY, THE ASSESSEE WAS EXAMINED UNDER ITA NO. 1519/M/2014 2 SECT ION 131(1) OF THE ACT, W HEREIN HE ADMITTED THAT THE ABOVE SAID SUM OF RS.80 LAKHS WAS RECEIVED IN CONNECTION OF SALE OF PROPERTY AND THE SAME WAS NOT ACCOUNTED FOR. ACCORDINGLY, THE AO REOPENED THE ASSESSMENT BY ISSUING NOTICE U/S 148 OF THE ACT. BEFORE THE AO, THE ASSESSEE DID NOT FURNISH ANY REPLY WITH REGARD TO THE VARIOUS QUARRIES RAISED BY THE AO. HENCE, THE AO ASSESSED THE SUM OF RS.80 LAKHS AS INCOME OF THE ASSESSEE. 4 . IN THE APPELLATE PROCEEDINGS, THE ASSESSEE FILED VARIOUS DETAILS BEFORE THE L D.CIT(A) AND HENCE, THE LD.CIT(A) CALLED FOR THE REMAND REPORT FROM THE AO. 5 . IT WAS NOTICED THAT THE ASSESSEE AND HIS WIFE ARE THE DIRECTORS IN A COMPANY NAMED AS M/S MOURYA REALTY PVT.LTD. THE SAID COMPANY HELD A PIECE OF LAND IN ITS NAME . T HE ASSES SEE AND HIS WIFE S OLD ALL THE SH ARES HELD BY THEM IN THE ABOVE SAID COMPANY T O ANOTHER COMPANY NAMED M/S DELHIWALA REAL ESTATE PVT LTD. IN THAT PROCESS, THE LAND HELD BY MOURYA REALTY PVT LTD GOT TRANSFERRED TO M/S DELHIWALA REAL ESTATE PVT LTD. HOWEVE R, THE ASSESSEE ALSO ENTERED INTO AN AGREEMENT TO TRANSFER THE LAND HELD BY M/S MOURYA REALTY PVT LTD AT A PRICE OF RS.3,99,21,000/ - . IN CONNECTION WITH THE TRANSFER OF SHARE S /LAND, THE ASSESSEE RECEIVED POST DATED CHEQUES AS WELL AS CASH AGGREGATING TO R S.4,72,78,000/ - . THE AMOUNT OF RS.80 LAKHS UNDER CONSIDERATION WAS ALSO RECEIVED IN LIEU OF A POST DATED CHEQUE ISSUED FOR A SUM OF RS.82.06 LAKHS. SINCE THE ASSESSEE HAD RECEIVED A SUM OF RS.4,72,78,000/ - AS AGAINST THE AGREED AMOUNT OF RS.3,99,21,000/ - , THE ASSESSEE RETURNED BACK THE EXCES S AMOUNT OF RS.73,57,000/ - . DURING THE COURSE OF REMAND PROCEEDINGS, THE AO EXAMINED THE REPAYMENT OF RS.73.57 LAKHS AND NOTICED THAT A SUM OF RS.50,00,000/ - WAS RE PAID BY WAY OF CHEQUES AND THE BALANCE AMOUNT OF R S.23,57,000/ - WAS PAID BY WAY OF CASH. HOWEVER, THE AO EXPRESSED THE ITA NO. 1519/M/2014 3 VIEW THAT THE DIFFERENCE BETWEEN RECEIPT OF RS. 82,06,000 AND THE PAYMENT OF RS.23,57,000/ - REMAINED UNANSWERED. 6 . THE LD. CIT(A) EXAMINED THE FACTS PREVAILING IN THE CASES AND NOTIC ED THAT THE ASSESSEE HAD RECEIVED A SUM OF RS.4,72,78,000/ - , AS AGAINST THE SALE CONSIDERATION OF RS.3,99,21,000/ - AND HENCE EXCESS PAYMENT OF RS.73.57 LAKHS WAS RETURNED BY THE ASSESSEE. THE LD. CIT(A) FURTHER NOTICED THAT THE ASSESSEE IN FACT TRANSFE RRED THE SHARES OF M/S MOURYA REALTY PVT LTD TO M/S DELHIWAL A REAL ESTATE PVT LTD AND THE SAID TRANSFER WOULD AUTOMATICALLY TRANSFER THE LAND ALSO. THE LD. CIT(A) ALSO NOTICED THAT THE ASSESSEE AND HIS WIFE HAS DULY DECLARED CAPITAL GAIN ARISING ON TRAN SFER OF SHARES. THE LD. CIT(A) FURTHER NOTICE D THAT THE TRANSFER OF SHARES HAS TAKEN PLACE IN THE MONTH OF MAY, 2007 AND HENCE, THE CAPITAL GAINS IS ASSESSABLE IN THE SUCCEEDING ASSESSMENT YEAR I.E. IN AY 2008 - 09. THE LD CIT(A) ALSO NOTICED THAT THE SALE AGREEMENT WAS NOT REGISTERED WITH THE REGISTRATION AUTHORITIES. IN VIEW OF THE ABOVE, THE LD.CIT(A) HAS ACCEPTED THE SUBMISSION OF THE ASSESSEE THAT THE AGREEMENT FOR SALE OF LAND WAS ENTERED INTO IN ORDER TO DETERMINE THE MUTUALLY AGREEABLE VALUE. THE LD. CIT(A() FURTHER NOTICED THAT THE DIFFERENCE BETWEEN CAPITAL GAINS ARISING ON SALE OF LAND AND THE SALE OF SHARES WAS VERY MINIMAL. UNDER THESE SET OF FACTS, THE LD. CIT(A) HELD THE THE ADDITION OF RS.80 LAKHS MADE BY THE AO CANNOT BE SUSTAINED. 7 . FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE RELEVANT OBSERVATION MADE BY THE LD. CIT(A) ON THIS ISSUE: 5.2.1 THE FACTS AS THEY EMERGE FROM THE IMPUGNED ASSESSMENT ORDER, REMAND REPORT AND SUBMISSIONS OF THE APPELLANT DURING THESE PROCEEDINGS REVEA L THAT THE APPELLANT AND HIS WIFE WERE DIRECTORS OF THE COMPANY M/S MOURYA REALTY PVT. LTD. THAT WAS INCORPORATED ON 22.03.2006. ON 06.12.2006, THE APPELLANT ENTERED INTO AN AGREEMENT FOR THE SALE OF LAND OWNED BY M/S ITA NO. 1519/M/2014 4 MOURYA REALTY PVT. LTD. TO M/S DELHI WALA REAL ESTATE PVT. LTD. FOR A CONSIDERATION OF RS.3,99,21,000/ - . SUBSEQUENTLY, THE SHARES OF M/S MOURYA REALTY PVT. LTD. WERE TRANSFERRED TO M/S DELHIWALA REAL ESTATE PVT. LTD. AND THE COMPANY WITH ITS ASSETS (INCLUDING THE LAND AT UDAIPUR) CHANGED HAND S AND CAME UNDER THE OWNERSHIP OF M/S DELHIWALA REAL ESTATE PVT. LTD. MATERIAL UNEARTHED DURING A SEARCH CARRIED OUT BY THE DEPARTMENT ON M/S DELHIWALA REAL ESTATE PVT. LTD., INDICATED THAT THE SAID COMPANY HAD PAID AN AMOUNT OF RS. 80,00,000/ - TO THE APPE LLANT IN CASH. THE STATEMENT OF THE APPELLANT WAS CONSEQUENTLY RECORDED ON 03.12.2007 WHEREIN HE ADMITTED TO HAVING RECEIVED THIS AMOUNT IN CASH IN LIEU OF THE POST DATED CHEQUES ISSUED TO HIM BY M/S DELHIWALA REAL ESTATE PVT LTD. IN VIEW OF THE FACT THAT THERE WAS NO RESPONSE TO THE NOTICES ISSUED BY THE A.O. DURING ASSESSMENT PROCEEDINGS, THE ADDITION OF RS.80,00,000/ - WAS MADE IN THE HANDS OF THE APPELLANT AS 'UNDISCLOSED INCOME' BASED ON HIS STATEMENT RECORDED U/S 131. 5.2.2 A PERUSAL OF THE AGREEMENT DATED 06.12.2006 REVEALS THAT THE CONSIDERATION DETERMINED FOR TRANSFER OF LAND WAS RS.3,99,21,000/ - . CLAUSE 5 OF THE DEED STIPULATES THE SCHEDULE AND MODE OF PAYMENTS TO BE MADE B Y M/S DELHIWALA REAL ESTATE PVT. LTD. TO THE APPELLANT IN THIS REGARD A ND S PECIFICALLY MENTIONS THE ADVANCE OF RS.50,00, 000 / - GIVEN TO THE APPELLANT AS WELL AS THE POST DATED CHEQUES HANDED OVER TO THE APPELLANT BY PURCHASER. THE SAID CLAUSE ALSO STATES THAT IN LIEU OF THE CHEQUES ISSUED FOR RS.1,00,00,000/ - AND RS.82,00,000/ - , M /S DELHIWALA REAL ESTATE PVT. LTD. MAY S UBSEQUENTLY MAKE THE PAYMENT BY CASH AND TAKE BACK THE CHEQUES ISSUE D FOR THAT AMOUNT. THIS IS ALSO REITERATED IN THE ANSWER GIVEN BY THE AP PELLANT TO QUESTION NO.7 OF THE STATEMENT RECORDED U/S 131. ALSO, IN AN SWER TO QUESTION 11 OF THE SAID STATEMENT, WHERE THE APPELLANT WAS ASKED I F THE LAND HAD BEEN TRANSFERRED FOR A SUM OF RS.5,90,62,500/ - , HE ONCE AGAIN SAID THAT THE DEAL WITH M/S DELHIWALA REAL ESTATE PVT. LTD. WAS FOR RS.3,99,21,000/ - ONLY. IN ANSWER TO QUEST ION 12, THE APPELLANT HAS ONCE AGAIN STATED THAT THE AMOUNT OF CASH WAS RECEIVED IN LIEU OF POST - DATED CHEQUES WHICH WERE SUBSEQUENTLY HANDED OVER TO HIM BY M/S DELHIWALA REALESTATE PVT. LTD. 5.2.3 THE REMAND REPORT STATES THAT AS PER THE ARRANGEMENT BET WEEN THE APPELLANT AND M/S DELHIWALA REAL ESTATE PVT. LTD., THE SAID CONSIDERATION WAS TO BE RECEIVED AS FOLLOWS : ITA NO. 1519/M/2014 5 CHEQUE NO. DATE AMOUNT 028601 13 - 12 - 2006 5000000 028602 05 - 01 - 2007 5000000 028603 16 - 01 - 2007 10000000 028604 NOT DEPOSITED 8206000 028605 NOT DEPOSITED 1 1 715000 TOTAL 39921000 HOWEVER, AS NOTED BY THE AO , IN ACTUAL FACT, THE APPELLANT RECEIVED A TOTAL AMOUNT OF RS. 4,72,78,000/ - (THROUGH CHEQUES AND BY CASH) AS FOLLOWS: CHEQUE NO. DATE AMOUNT 028601 13 - 12 - 20 06 5000000 028602 05 - 01 - 2007 5000000 028603 16 - 01 - 2007 10000000 758572 29 - 03 - 2007 1732000 09 - 05 - 2007 6340000 12 - 05 - 2007 1000000 05 - 05 - 2007 10000000 CASH 8206000 TOTAL 47278000 THE A.O. FURTHER NOTED THAT THEREAFTER, THE EXCESS AMOUN T OF RS.73,57,OOO/ - ,WAS REPAID BY THE APPELLANT TO M /S DELHIWALA REAL ESTATE PVT. LTD. THROUGH CHEQUES AND CASH AS BELOW: CHEQUE NO . DATE AMOUNT 654935 24 - 01 - 2007 2500000 654938 16 - 02 - 2007 1000000 65 4 939 16 - 02 - 2007 500000 654937 16 - 02 - 2007 1 000000 CASH 2357000 TOTAL 7357000 5. 2 . 4 DUR I NG REMAND PROCEEDINGS, THE A.O. VERIFIED THE REPAYMENT OF TH I S E XCES S AM OUNT FR OM T H E CONCERNED BANKS I . E. STA T E BANK O F B I KA N E R & JA I PU RAND S TA T E BAN K OF IN D I A , UDAIP U R BRANC H AND F O UND T H E DETA IL S O F R EPAYMEN T T O BE CORRECT. THUS IT IS CLEAR THAT AN AMOUNT OF RS.50,00,000/ - , WAS R ETURNED BY THE APPELLANT TO THE PURCHASER. HOWEVER, THE A.O . NO T ED THAT I N T HE AB S E N CE OF CONF I RMATION FROM M/S DELHIWALA REAL ESTATE PV T . LTD. , T H E APELLANT'S A SSERTION THAT RS. 23,57,000/ - HAS BEEN PAID BACK IN CASH WAS N OT VERIFIABLE. ITA NO. 1519/M/2014 6 5.2.5 ON CONSIDERATION OF THE ENTIRE CONSPECTUS OF FACTS RELATED TO THE INSTANT CASE, I FIND THAT THE CORE ISSUE IS REGARDING THE CAPITAL GAIN THAT AROSE ON ACCOUNT OF TRANSFER OF THE LAND OWNED BY AND / OR TRANSFER OF SHARES OF M/S MOURYA REALTY PVT. LTD BY THE A PPELLANT AND HIS WIFE TO M/S DELHIWALA REAL ESTATE PVT LTD. THE NATURE OF TRANSACTIONS UNDERTAKEN BY THE APPELLANT CLEARLY REVEALS THAT THE INTENT WAS TO TRANSFER THE LA ND BUT IN ACTUAL PRACTICE THE OWNERSHIP OF THE COMPANY HOLDING THE LAND WAS TRANSFERRED. TO SAY THAT THE LAND WAS T RANSFERRED IS NOT CORRECT INASMUCH AS THE CONVEYANCE DEED WAS NOT REGISTERED AND THE AGREEMENT WAS DRAWN UP IN ORDER TO DETERMINE A MUTUALLY AGREEABLE VALUE FOR THE LAND WHICH WAS THE PRIMARY ASSET OF THE COMPANY. THIS PRACTICE THOUGH UNDESIRABLE, SUITS BOTH THE PARTIES AS IT SAVES STAMP DUTY FOR THE PURCHASER AND THIS IN TURN LEADS TO THE SELLER OBTAINING A HIGHER CONSIDERATION. THEREFORE, THO UGH AN AGREEMENT WAS ENTERED TO SELL THE LAND, THE ACTUAL MODUS OPERANDI FOR THE TRANSACTION IS THROUGH THE SALE OF SHARES AND NOT THE SALE OF LAND. IN OTHER WORDS, INSTEAD OF TRANSFERRING THE LAND, THE APPELLANT TRANSFERRED THE SHARES OF M/S MOURYA REALTY PVT. LTD TO M/S DELHIWALA REAL ESTATE PVT. LTD. AND THROUGH THIS TRANSFER, M/S DELHIWALA REAL ESTATE PVT. LTD. CAME TO BE OWNER OF THE LAND IN THE NAME OF M/S MOURYA REALTY PVT. LTD. THUS THE APPELLANT TRANSFERRED THE LAND THROUGH WHAT IS COMMONLY KNOWN A S AN 'ALIBI ASSET' I.E. SHARES OF THE COMPANY. IN THE INSTANT CASE, THE A.O. HAS NOT DOUBTED THE COST OF ACQUISITION OF THE LAND TRANSFERRED - BY THE APPELLANT NOR THE FULL VALUE OF CONSIDERATION RECEIVED AS SALE CONSIDERATION OF THE SAID LAND. NEITHER HAS A NYTHING BEEN BROUGHT ON RECORD TO CAST DOUBT ON THE EXPENSES CLAIMED IN CONNECTION WITH THIS TRANSFER. THE CAPITAL GAIN ENSUING FROM THE TRANSFER IS TO BE COMPUTED ONLY ON THE BASIS OF THE COST OF LAND, THE SALE PRICE THEREOF IS TO BE COMPUTED ONLY ON THE BASIS OF THE COST OF LAND, THE SALE PRICE THEREOF AND THE EXPENSES CLAIMED IN RELATION TO SUCH TRANSFER. AS STATED BEFORE, THE OWNERSHIP OF THE LAND CAME TO M/S DELHIWALA REAL ESTATE PVT.LTD, THROUGH THE TRANSFER OF SHARES OF M/S MOURYA REALTY PVT.LTD. THE BREAKUP VALUE OF THE SHARES OF MOURYA REALTY PVT LTD.(CONSIDERING THE MARKET VALUE OF LAND S PER AGREEMENT DATED 6.12.2007 AT RS.3,99,21,000/ - COMES TO RS.61.41 PER SHARE. IN ALL THE APPELLANT AND HIS WIFE RECEIVED TOTAL CONSIDERATION AMOUNTING TO RS.1,58,60,000/ - (RS.1,26,88,000/ - FOR 2,00,000 SHARES HELD BY SHRI SURENDRA LUDHANI AND RS.31,72,000/ - FOR 50,000/ - SHARES HELD BY SMT. ITA NO. 1519/M/2014 7 SUMAN LUDHANI) FOR THE SAID TRANSACTION. THIS AMOUNT WAS GREATER BY RS.5,07,583/ - THAN THE BREAKUP VALUE OF SHARES VIZ RS.1,53,52,417/ - . ON COMPARISON, THE CAPITAL GAIN ON SALE OF LAND WORKS OUT TO RS.1,34,69,788/ - AS AGAINST CAPITAL GAINS OF RS.1,33,60,000/ - ON SALE OF SHARES OF M/S MOURYA REALTY PVT.LTD. THUS THE CAPITAL GAIN DISCLOSED BY THE APPELLANT AND HIS WI FE, IS LOWER BY AN AMOUNT OF RS.1,09,785/ - , IN CASE THE GAINS ARE TO BE TAXED ON TRANSFER OF LAND PER SE. 5.2.6 NOW THE NEXT QUESTION, WHICH ARISES FOR CONSIDERATION WHETHER THIS CAPITAL GAIN IS TO BE TAXED IN THE YEAR OF AGREEMENT FO R SALE OF LAND OR THE YE A R IN WHICH THE DATE OF SHARES TRANSFER FALLS? IN THE IMPUGNED ORDER, THE AO HAS TAKEN THE DATE OF AGREEMENT REGARDING SALE OF LAND I.E. 6.12.2006 AS THE DETERMINING POINT FOR TA XA TION OF CAPITAL GAIN WITH REFERENCE TO THE DATE OF AGREEMENT FOR SALE OF LAND BETWEEN THE APPELLANT AND M/S DELHIWAL A REAL ESTATE PVT LTD AND THEREFORE THE ADDITION WAS MADE IN AY 2007 - 08. AS OBSERVED EARLIER, THE ACTUAL MODUS OPERANDI FOR THE TRANSACTION IS THROUGH THE SALE OF SHARES AND NOT THE SALE OF LAND. AS SUCH, T HE DATE MATERIAL TO THE DETERMINATION OF THE YE A R IN WHICH CAPITAL GAIN ARISES IS THE DATE OF TRANSFER OF SHARES AND NOT THE DATE OF THE AGREEMENT THROUGH WHICH THE VALUE OF LAND WAS SET OUT. AS THE SHARES OF M/S MOURYA REALTY PVT LTD HELD B Y T HE ASSESS EE AND HIS WIFE, SMT. SUMAN LUDHANI, WERE TRANSFERRED IN MAY, 2007, THE INCIDENCE OF CAPITAL GAINS ON SALE OF SHARES AR OSE IN THE AY 2008 - 09 AND NOT IN AY 2007 - 08. THE MAJOR PART O F THE CONSIDERATION FOR SHARES IS REFLECTED AS BEING MADE OVER TO THE AP PELLANT IN THE PREVIOUS YEAR RELEVANT TOT AY 2008 - 09. THEREFORE, EVEN OTHERWISE , THE CAPITAL GAIN WOULD BE TAXABLE IN AY 2008 - 09 AND NOT IN AY 2007 - 08. IN THE REMAND REPORT DATED 20.9.2013, THE AO HAS CONFIRMED THAT CAPITAL GAIN ON THE SALE OF SHARES T O THE TUNE OF RS.1,06,64,000/ - AND RS.24,22,000/ - HAS BEEN REFLECTED IN THE RETURNS FILED BY THE APPELLANT AND HIS WIFE RESPECTIVELY FOR AY 2009 - 10. 5.2.7 IN THE REMAND REPORT, THE AO HAS STATED THAT REPAYMENT OF RS.23,57,000/ - COULD NOT BE CONFIRMED. IN THIS REGARD IT MUST BE NOTED THAT THE RECEIPT OF CASH OF RS.82,06,000 / - BY THE APPELLANT FROM M/S DELHIWALA REAL ESTATE PVT.LTD IS NOT DISPUTED BY THE AO. THE SAID CASH HAD NOT BEEN SHOWN TO BE UTILISED ELSEWHERE BY THE AO . THUS, CONSIDERING THE FAC TS OF THE CASE AT HAND, THE REPAYMENT O F CASH OF RS.23,57,000/ - CANNOT BE ITA NO. 1519/M/2014 8 UPHELD SIMPLY FOR LACK OF RESPONSE TO LETTER U/S 133 (6). 5.2.8 THUS, ON REVIEWING THE ENTIRE CONSPECTUS OF FACTS RELATING TO THE ISSUE AT HAND, I FIND THAT T HE ADDITION OF RS.80,00 ,000/ - CANNOT BE SUSTAINED AS THERE IS NO DISPUTE A REGARDS THE FULL VALUE OF CONSIDERATION OF THE ASSETS SO TRANSFERRED. ACCORDINGLY , THE GROUND RAISE BY THE APPELLANT IS ALLOWED. 8 . WE HAVE CAREFULLY GONE THROUGH ORDER PASSED BY THE LD. CIT(A) ON THIS ISSUE. WE ARE OF THE VIEW THAT THE LD. CIT(A) HAS ANALYZED THE FACTS CONCERNING TO THE ISSUE IN A PROPER PERSPECTIVE AND TAKEN CONSCIOUS DE CISION THAT THE ADDITION MADE BY THE AO OF RS.80 LAKHS IS NOT SUSTAINABLE IN LAW. EVEN THOUGH THE ASSESSEE HAS SUB MITTED THAT THE ABOVE SAID AMOUNT OF RS.80.00 LAKHS WAS NOT ACCOUNTED FOR, YET WE NOTICE THAT WHAT IS REALLY TAXABLE UNDER THE ACT IS THE CAPITAL GAIN ARISING ON SALE OF SHARES ONLY, SINCE THE TRANSFER OF LAND WAS AUTOMATIC ON THE TRANSFER OF SHARES OF M/S MOURYA REALTY PVT LTD. WE FURTHER NOTICE THAT THE LD CIT(A) HAS GIVEN A CATEGORICAL FINDING THAT THE IMPUGNED AMOUNT OF RS.80.00 LAKHS WAS INCLUDED IN THE SALE CONSIDERATION AND HENCE NO SEPARATE ADDITION IS CALLED FOR. HENCE, WE DO NOT FIND ANY INFIRMI TY IN HIS ORDER ON THIS ISSUE. 9 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED . PRONOUNCED ACCORDINGLY ON 23RD SEPT, 2015. 23RD SEPT , 2015 SD SD ( AMARJIT SINGH ) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 23RD SEPT , 2015 . . . ./ SRL , SR. PS ITA NO. 1519/M/2014 9 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE R ESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMB AI