Electrocast Sales India Ltd., Kolkata V. DCIT, CC-XXI, KOLKATA, Kolkata

ITA 2145/KOL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1391 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 01-06-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 27-11-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Capital asset; Business income; Scheme of amalgamation; Revised return
• Section: 143(3); 115JB; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SHRI ABY. T. VARKEY, JM & SHRI M. BALAGANESH, AM ] I.T.A NO. 2145/KOL/20 14 ASSESSMENT YEAR : 2011-1 2 ELECTROCAST SALES INDIA LTD. -VS- DCIT, CC-XXI, KOLKATA [PAN: AAACE 5671 N] (APPELLANT) ( RESPONDENT) FOR THE APPELLANT : SHRI RAVI TULSIYAN , FCA FOR THE RESPONDENT : SHRI S. DASGUPTA, ADDL. CIT (DR) DATE OF HEARING : 28.02.2018 DATE OF PRONOUNCEMENT : 09.03.2018 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE OR DER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS), CENTRAL-II, KOLKATA [IN SHORT THE LD CIT(A)] IN APPEAL NO.38/CC-XXI/CIT(A)C-II/14-15 DATED 22.12.2014 AGA INST THE ORDER PASSED BY THE DCIT, CC-XXI, KOLKATA [ IN SHORT THE LD AO] UNDER S ECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 13,03.2014 FO R THE ASSESSMENT YEAR 2011-12. 2. THE FIRST ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE ACTION OF THE REVENUE IN NOT GRANTING THE BENEFIT OF BROUGHT FORWARD LOSS ES OF AMALGAMATING COMPANY IN THE HANDS OF THE AMALGAMATED COMPANY IN THE FACTS AND C IRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE COMPANY FILED ITS RETURN OF INCOME FOR THE ASST YEAR 2011-12 ON 20.9.2011 DECLARING TOTAL INCOME OF RS 4,86,02,986/- UNDER THE NORMAL PROVISIONS OF THE ACT. AND RS 4,29,19,97 5/- U/S 115JB OF THE ACT. LATER A REVISED RETURN OF INCOME WAS FILED ON 30.3.2013 DEC LARING TOTAL INCOME OF RS NIL AFTER 2 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 2 CLAIMING SET OFF OF BROUGHT FORWARD BUSINESS LOSSES AND BROUGHT FORWARD SHORT TERM CAPITAL LOSSES. THE ASSESSEE COMPANY IS A NON-BAN KING FINANCE COMPANY (NBFC). DURING THE YEAR UNDER CONSIDERATION, BY VIRTUE OF T HE ORDER OF THE HONBLE CALCUTTA HIGH COURT DATED 6.10.2010 , THE FOLLOWING SIX COMPANIES WITH UNABSORBED CAPITAL AND BUSINESS LOSSES AS DETAILED BELOW WERE MERGED WITH THE ASSESSEE COMPANY W.E.F. 1.4.2010 :- THE ASSESSEE VIDE ITS REVISED RETURN CLAIMED UNABSO RBED SHORT TERM CAPITAL LOSS OF RS 4,86,48,349/- AND UNABSORBED BUSINESS LOSS OF RS 4, 95,893/- INCURRED BY THE AMALGAMATING COMPANIES. THE LD AO IN THE COURSE OF ASSESSMENT DENIED THE SET-OFF AND CARRY FORWARD OF LOSSES BY INVOKING THE PROVISIONS OF SECTION 79 OF THE ACT. IN THE COURSE OF APPELLATE PROCEEDINGS BY THE LD CITA, THE ASSESSEE SUBMITTED THAT SECTION 79 OF THE ACT WAS NOT APPLICABLE TO THE ASSESSEES ASE . RELIANCE IN THIS REGARD WAS PLACED ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS SELECT HOLIDAY RESORTS (P) LTD REPORTED IN 35 TAXMANN.COM 368 (DEL HC). THE SAID CONTENTION WAS ACCEPTED BY THE LD CITA. HOWEVER, THE CLAIM OF CAR RY-FORWARD AND SET-OFF OF LOSSES WAS DENIED ON THE GROUND THAT THE AMALGAMATING COMPANIE S IN THE INSTANT CASE DID NOT OWN AN INDUSTRIAL UNDERTAKING AS DEFINED U/S 72A OF T HE ACT. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS:- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A), CE NTRAL-II, KOLKATA, WAS NOT JUSTIFIED IN DISMISSING THE CLAIM OF SET-OFF OF BROUGHT FORWARD LOSS OF RS. 3 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 3 4,95,893/- AGAINST CURRENT YEARS BUSINESS INCOME T HOUGH IT WAS ACCEPTED THAT SECTION 79 OF INCOME TAX ACT, 1961 IS NOT APPL ICABLE. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A), CE NTRAL-II, KOLKATA WAS NOT JUSTIFIED IN DISMISSING THE CLAIM OF SET-OFF OF BROUGHT FORWARD SHORT TERM LOSS OF RS. 4,86,48,349/- AGAINST CURRENT YEARS SH ORT TERM CAPITAL GAIN AND TO CARRY FORWARD BALANCE SHORT TERM CAPITAL LOS S OF RS. 5,39,95,774/- 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD INCLUDING THE VARIOUS PAPER BOOKS OF THE ASSESSEE. THE CONTENTS OF THE PAPER BOOKS ARE AS UNDER:- A) SCHEME OF AMALGAMATION APPROVED BY THE HONBLE C ALCUTTA HIGH COURT VIDE ITS ORDER DATED 6.10.2010 ENCLOSED IN PAGES 4 TO 32 O F PB; B) LETTERS TO THE RESPECTIVE AOS FOR SURRENDER OF P AN OF AMALGAMATING COMPANIES ENCLOSED IN PAGES 33 TO 37 OF PB; THE FACTS STATED HEREINABOVE REMAIN UNDISPUTED AND HENCE THE SAME ARE NOT REITERATED FOR THE SAKE OF BREVITY. WE FIND THAT THE PROVISI ONS OF SET-OFF OF LOSSES OF AMALGAMATING COMPANIES IN THE HANDS OF THE AMALGAMATED COMPANY A RE AVAILABLE IN SECTION 72A OF THE ACT. THE PROVISIONS OF SECTION 72A OF THE ACT MANDA TES THE ENTERPRISE , WHOSE LOSS IS TO BE SET OFF WITH THE MERGED ENTITY , TO OWN AN INDU STRIAL UNDERTAKING . IN THE INSTANT CASE, ADMITTEDLY, THE AMALGAMATING COMPANIES DID NO T OWN ANY INDUSTRIAL UNDERTAKING. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAD NOT COMP LIED WITH THE PROVISIONS OF SECTION 72A OF THE ACT. IN THIS REGARD, THE LD AR PLACED HEAVY RELIANCE ONLY ON A PARTICULAR CLAUSE PROVIDED IN THE SCHEME WHICH ALLOWED THE ACCUMULATE D LOSSES OF AMALGAMATING COMPANIES FOR ALL PURPOSES SHALL GET CARRIED FORWAR D AND GET VESTED WITH THE AMALGAMATED COMPANY AND THAT SUCH SCHEME OF AMALGAM ATION IN ACCORDANCE WITH SECTIONS 391 TO 394 OF THE COMPANIES ACT, 1956 WERE DULY APPROVED BY THE HONBLE CALCUTTA HIGH COURT VIDE ITS ORDER DATED 6.10.2010 WITH EFFECTIVE DATE FROM 1.4.2010 AND BECAUSE OF THE SAID ORDER, IT IS THE ARGUMENT O F THE LD AR THAT THE ORDER OF THE 4 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 4 HONBLE CALCUTTA HIGH COURT SUPERCEDES THE PROVISIO NS OF THE ACT HEREIN. FOR THE SAKE OF CONVENIENCE, THE RELEVANT CLAUSE IN THE SCHEME O F AMALGAMATION IS REPRODUCED HEREUNDER:- 10. CONDUCT OF ACTIVITIES TILL EFFECTIVE DATE : 10.1. WITH EFFECT FROM THE APPOINTED DATE AND UP TO THE EFFECTIVE DATE : I. . II. . III. ALL PROFITS OR INCOME ACCRUING OR ARISING TO T HE TRANSFEROR COMPANIES OR EXPENDITURE OR LOSSES ARISING OR INCURRED BY THE TR ANSFEROR COMPANIES INCLUDING ACCUMULATED LOSSES SHALL FOR ALL PURPOSES BE DEEMED TO HAVE ACCRUED AS THE PROFITS OR INCOME OR EXPENDITURE OR LOSSES, AS THE CASE MAY BE, OF THE TRANSFEREE COMPANY. (UNDERLINING PROVIDED BY US) THE LD AR PLACED RELIANCE ON THE FOLLOWING DECISION S IN SUPPORT OF HIS CONTENTIONS:- A) HONBLE GUJARAT HIGH COURT IN THE CASE OF WOOD P OLYMER LTD REPORTED IN 109 ITR 177 (GUJ) B) HONBLE BOMBAY HIGH COURT IN THE CASE OF CASBY C FS (P) LTD REPORTED IN 231 TAXMAN 89 (BOM) C) HONBLE SUPREME COURT IN THE CASE OF J.K.(BOMBAY ) (P) LTD VS NEW KAISER I-HIND SPG.& WVG.CO. REPORTED IN 1970 AIR 1041 (SC) DATED 22.11.1968 D) HONBLE MADRAS HIGH COURT IN THE CASE OF PENTAME DIA GRAPHICS LTD VS ITO REPORTED IN 236 CTR 204 (MAD) E) CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE O F VIVADA CHEMICALS PVT LTD VS DCIT IN ITA NO. 1764/KOL/2014 DATED 18.12.2014 F) CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE O F ITO VS PURBANCHAAL POWER CO. LTD IN ITA NO. 201/KOL/2010 DATED 17.7.2014. 5 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 5 4.1. THE LD AR ARGUED THAT THE UNION OF INDIA IS MA DE A PARTY IN THE SAID SCHEME OF ARRANGEMENT, MEANING THEREBY, THAT ALL THE CENTRAL GOVERNMENT REGULATORY AUTHORITIES HAD A RIGHT TO OBJECT TO THE SCHEME OF MERGER BEFORE TH E HONBLE HIGH COURT BEFORE THE MERGER. IN THE INSTANT CASE, THE INCOME TAX DEPART MENT , WHO IS PART OF UNION OF INDIA, HAD NOT FILED ANY OBJECTIONS BEFORE THE HONBLE HIG H COURT OBJECTING TO THE MERGER. HENCE THE DEPARTMENT CANNOT OBJECT TO THE SAME AT T HIS POINT OF TIME WHILE IMPLEMENTING THE SAID ORDER OF MERGER. IN CASE IF THE INCOME TAX DEPARTMENT IS HAVING ANY GRIEVANCE FROM THE ORDER OF MERGER APPROVED BY THE HONBLE HIGH COURT, IT IS ENTITLED TO CONTEST THE SAME IN HIGHER FORUM , BUT CANNOT TAKE A DIFFERENT STAND WHILE IMPLEMENTING THE SAID ORDER. 4.2. IN RESPONSE TO THIS, THE LD DR ARGUED THAT ADM ITTEDLY THE ASSESSEE HAD NOT COMPLIED WITH THE PROVISIONS OF SECTION 72A OF THE ACT AND T HAT THE LOSSES ARISING OUT OF MERGER / AMALGAMATIONS ARE COVERED ONLY UNDER SECTION 72A OF THE ACT AND THAT WHEN THE SAME IS NOT COMPLIED WITH, THE ASSESSEE CANNOT BE GIVEN THE BENEFIT OF SET OFF OF LOSSES OF AMALGAMATING COMPANIES. THE LD DR ALSO PLACED RE LIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF MARSHALL SONS & CO. (INDIA) LTD VS ITO REPORTED IN 138 CTR (SC) 1. 4.3. IN REJOINDER, THE LD AR ARGUED THAT THE SAID DECISION OF MARSHALL SONS & CO SUPRA HAD BEEN DULY CONSIDERED BY THE HONBLE MADRAS HIGH COURT IN THE CASE OF PENTAMEDIA GRAPHICS LTD VS ITO SUPRA RELIED UPON BY THE ASSESS EE HEREIN AND FURTHER STATED THAT THE SAME IS IN FAVOUR OF THE ASSESSEE. 4.4. WE FIND THAT THE SCHEME OF AMALGAMATION WOULD BE APPROVED BY THE HONBLE HIGH COURT ONLY AFTER ENSURING THAT THE SAME IS NOT PREJ UDICIAL TO THE INTERESTS OF ITS MEMBERS OR TO PUBLIC INTEREST. HENCE THE MERGER SCHEME A PPROVED BY THE HONBLE HIGH COURT HAVING IN MIND THE LARGER PUBLIC INTEREST, CANNOT B E DISTURBED BY THE REVENUE MERELY 6 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 6 BECAUSE THE ASSESSEE IS NOT ENTITLED FOR BENEFITS U /S 72A OF THE ACT. THE EXPRESSION PUBLIC INTEREST WAS DISCUSSED BY THE HONBLE GUJARAT HIGH COURT IN THE CASE OF WOOD POLYMER LTD REPORTED IN 109 ITR 177 (GUJ) WHEREIN THE HONBLE COURT REFUSED TO SANCTION THE SCHEME OF AMALGAMATION FORMULATED SOLE LY FOR THE PURPOSE OF AVOIDING TAXES. IT WAS HELD THAT : THE COURT IS CHARGED WITH A DUTY, BEFORE IT FINALL Y PERMITS DISSOLUTION OF THE TRANSFEROR- COMPANY BY DISSOLVING IT WITHOUT WINDING UP, TO ASC ERTAIN WHETHER ITS AFFAIRS HAVE BEEN CARRIED ON, NOT ONLY IN A MANNER NOT PREJUDICIAL TO ITS MEMBERS BUT IN EVEN PUBLIC INTEREST. THE EXPRESSION PUBLIC INTEREST MUST TAK E ITS COLOUR AND CONTENT FROM THE CONTEXT IN WHICH IT IS USED. THE CONTEXT IN WHICH T HE EXPRESSION PUBLIC INTEREST IS USED, ENABLES THE COURT TO FIND OUT WHY THE TRANSFE ROR COMPANY CAME INTO EXISTENCE, FOR WHAT PURPOSE IT WAS SET UP, WHO WERE ITS PROMOTERS, WHO WERE CONTROLLING IT, WHAT OBJECT WAS SOUGHT TO BE ACHIEVED THROUGH CREATION O F THE TRANSFEROR COMPANY AND WHY IT WAS BEING DISSOLVED BY MERGING IT WITH ANOTHER COMP ANY, THAT IS THE COLOUR AND CONTENT OF THE EXPRESSION PUBLIC INTEREST AS USED IN THE SECOND PROVISO TO SECTION 394(1) OF THE ACT WHICH HAVE TO BE ENQUIRED INTO. IF THE ONLY PURPOSE APPEARS TO BE TO ACQUIRE CERTAIN CAPITAL ASSET THROUGH THE INTERMEDIARY OF T HE TRANSFEROR-COMPANY CREATED FOR THAT VERY PURPOSE TO MEET THE REQUIREMENT OF LAW, A ND IN THE PROCESS TO DEFEAT TAX LIABILITY WHICH WOULD OTHERWISE ARISE, IT COULD NOT BE SAID THAT THE AFFAIRS OF THE TRANSFEROR-COMPANY SOUGHT TO BE AMALGAMATED, CREATE D FOR THE SOLE PURPOSE OF FACILITATING TRANSFER OF CAPITAL ASSET THROUGH ITS MEDIUM, HAVE NOT BEEN CARRIED ON IN A MANNER PREJUDICIAL TO PUBLIC INTEREST. PUBLIC INTER EST LOOMS LARGE IN THIS BACKGROUND AND THE MACHINERY OF JUDICIAL PROCESS IS SOUGHT TO BE UTILIZED FOR DEFEATING PUBLIC INTEREST AND THE COURT WOULD NOT LEND ITS ASSISTANC E TO DEFEAT PUBLIC INTEREST. THE COURT WOULD, THEREFORE, NOT SANCTION THE SCHEME OF AMALGA MATION. HENCE IT COULD BE SAFELY INFERRED THAT THE COURT WO ULD EXERCISE DUE DILIGENCE AND WOULD CONDUCT DETAILED ENQUIRIES BEFORE SANCTIONING THE S CHEME. A SCHEME FORMULATED FOR THE PURPOSES OF TAX EVASION CANNOT BE HELD TO BE IN PU BLIC INTEREST AND HENCE THE SAME CANNOT BE SANCTIONED UNDER THE PROVISIONS OF COMPAN IES ACT, 1956. THE FACT THAT THE HONBLE CALCUTTA HIGH COURT HAD ACCORDED ITS SANCTI ON TO THE SCHEME OF AMALGAMATION IN THE ASSESSEES CASE IMPLIES THAT THE SAME HAD BE EN DONE BY CONSIDERING REPRESENTATIONS FROM THE VARIOUS FIELDS AND BY DULY CONSIDERING THE TAX EVASION POINT FOR INCOME TAX PURPOSES. IN THIS REGARD, WE WOULD LIK E TO PLACE RELIANCE ON THE FUNCTIONS, POWERS AND DISCRETIONS OF THE COURT THAT HAD BEEN N OTED BY SHRI A .RAMAIYA IN THE COMPANIES ACT, PART 2 AT PAGES 2499 AND 2500 IN POI NT NO. 6 INCORPORATED HEREUNDER: 7 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 7 THAT THE PROPOSED SCHEME OF COMPROMISE AND ARRANGE MENT IS NOT FOUND TO BE VIOLATIVE OF ANY PROVISION OF LAW AND IS NOT CONTRA RY TO PUBLIC POLICY. FOR ASCERTAINING THE REAL PURPOSE UNDERLYING THE SCHEME WITH A VIEW TO BE SATISFIED ON THIS ASPECT, THE COURT, IF NECESSARY, CAN PIERCE THE VEIL OF APPARENT CORPORATE PURPOSE UNDERLYING THE SCHEME AND CAN JUDICIOUSLY X -RAY THE SAME. 4.4.1. FURTHER WE FIND THAT THE PROVISIONS OF SECTI ON 394A OF THE COMPANIES ACT, 1956 READS AS UNDER:- NOTICE TO BE GIVEN TO CENTRAL GOVERNMENT FOR APPLIC ATIONS UNDER SECTIONS 391 AND 394 THE COURT SHALL GIVE NOTICE OF EVERY APPL ICATION MADE TO IT UNDER SECTION 391 OR 394 TO THE CENTRAL GOVERNMENT, AND S HALL TAKE INTO CONSIDERATION THE REPRESENTATIONS, IF ANY, MADE TO IT BY THAT GOV ERNMENT BEFORE PASSING ANY ORDER UNDER ANY OF THESE SECTIONS. HENCE IF THERE BE ANY OBJECTIONS FOR THE INCOME TAX DEPARTMENT , THEY COULD RAISE THE SAME AT THAT STAGE I.E PRIOR TO SANCTION OF SCHEME BY THE COURT. ONCE THE SCHEME IS APPROVED, IT IMPLIES THAT THE SAME HAS BEEN DONE AF TER DULY CONSIDERING THE REPRESENTATIONS FROM THE GOVERNMENT / REVENUE. SIMILAR VIEW WAS EXPRESSED BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF I TO VS PURBANCHAAL POWER CO. LTD IN ITA NO. 201/KOL/2010 DATED 17.7.2014 WHEREIN IT WAS HELD THAT :- FROM THE ABOVE PROVISIONS OF SECTION 394A OF THE CO MPANIES ACT, 1956, LEGAL POSITION ENUNCIATED IN THE DECISIONS OF HONBLE GUJ ARAT HIGH COURT IN THE CASE OF WOOD POLYMER LTD ., IN RE AND BENGAL HOTELS PVT LTD IN RE, SUPRA AND VODAFONE ESSAR GUJARAT LTD., SUPRA, EVIDENTLY MAKES THE PURPOSE CLEAR THAT IF THE REVENUE WANTS TO OBJECT TO THE PROPOSED SCHEME OF A MALGAMATION, IT HAS TO DO SO IN THE COURSE OF PROCEEDINGS BEFORE THE HIGH COURT BUT BEFORE THE FINAL ORDER IS PASSED. WHENEVER SUCH OBJECTIONS HAVE BEEN RAISED, THESE HAVE BEEN CONSIDERED ON MERITS BY THE CONCERNED HIGH COURT AND ALSO INCO RPORATED THE CONDITION FOR SAFEGUARDING THE INTEREST OF REVENUE IN THE VERY SC HEME. AS A MATTER OF PUBLIC POLICY, ONCE A SCHEME OF AMALGAMATION IS APPROVED B Y HONBLE HIGH COURT NO AUTHORITY SHOULD BE ALLOWED TO TINKER WITH THE SCHE ME. IN THE PRESENT CASE OF THE ASSESSEE, NEITHER THE OFFICIAL LIQUIDATOR NOR THE R EGIONAL DIRECTOR NOR CENTRAL GOVERNMENT RAISED ANY OBJECTION TO THE SCHEME OF AM ALGAMATION. IN SUCH CIRCUMSTANCES , WE ARE OF THE VIEW THAT THE REVENUE HAS NOTHING TO SAY AT THE TIME OF APPROVAL OF THE SCHEME BY HONBLE HIGH COURT IN THE PRESENT CASE. 8 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 8 4.5. WE FIND THAT THE HONBLE MADRAS HIGH COURT IN THE CASE OF PENTAMEDIA GRAPHICS LTD VS ITO REPORTED IN 236 CTR 204 (MAD) HAD CATEGORICALLY HELD THAT ONCE THE SCHEME HAD BEEN SANCTIONED WITH EFFECT FROM A PARTICULAR D ATE BY THE COURT, IT IS BINDING ON EVERYONE INCLUDING THE STATUTORY AUTHORITIES . IT FURTHER HELD THAT HAVING REGARD TO THE LAW DECLARED BY THE HONBLE APEX COURT AS TO THE EF FECT OF THE SCHEME SANCTIONED BY THE COURT, THE ONLY COURSE OPEN TO THE REVENUE WOULD BE TO ACT AS PER THE SCHEME SANCTIONED EFFECTIVE FROM 1 ST JAN 2004, WHICH MEANS THAT THE TAX AUTHORITIES ARE BOUND TO TAKE NOTE OF THE STATE OF AFFAIRS OF THE APPLICANT AS ON 1 ST JAN 2004 AND A RETURN FILED REGARDING THE SAME CANNOT BE IGNORED ON THE STRENGTH OF SECTION 1 39(5) OF THE IT ACT. THE MERITS OR OTHERWISE ON THE RETURNS FILED , HOWEVER, IS A MATT ER OF ASSESSMENT FOR THE AUTHORITIES TO CONSIDER AND PASS ORDER IN ACCORDANCE WITH LAW. I T WAS FURTHER HELD THAT WHEN THE CLAIM OF THE ASSESSEE IN THE APPEAL HAD ALREADY BEE N GRANTED, ON A MERE CIRCUMSTANCE THAT THE DEPARTMENT HAD NOT ACCEPTED THE SAME AND G ONE BEFORE THE APPELLATE FORUM DOES NOT MEAN THAT THE SCHEME SANCTIONED WOULD BE O F NO CONSEQUENCE TO THE RESPONDENT. THE RESPONDENT CANNOT IGNORE THE ORDER OF THIS COURT APPROVING THE SCHEME GIVING THE EFFECTIVE DATE AS 1 ST JAN, 2004. SIMILAR VIEW, THAT ONCE THE COURT SANCTIONS THE SCHEME , THE INCOME TAX DEPARTMENT WI LL BE BOUND BY THE SAME, INCLUDING THE APPOINTED DATE AND CANNOT REVIEW THE SAME, HAS BEEN HELD BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CASBY CFS (P) LTD REPORTE D IN 231 TAXMAN 89 (BOM) DATED 19.3.2015 (UNDERLINING PROVIDED BY US) 4.5.1. WE ALSO FIND THAT THE HONBLE SUPREME COURT IN THE CASE OF J.K.(BOMBAY) ( P) LTD VS NEW KAISER I-HIND SPG.& WVG.CO. REPORTED IN 197 0 AIR 1041 (SC) DATED 22.11.1968 HAD HELD : THE PRINCIPLE IS THAT A SCHEME SANCTIONED BY THE C OURT DOES NOT OPERATE AS A MERE AGREEMENT BETWEEN THE PARTIES ; IT BECOMES BIN DING ON THE COMPANY, THE CREDITORS AND THE SHAREHOLDERS AND HAS STATUTORY FO RCE , AND THEREFORE THE JOINT- 9 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 9 DEBTOR COULD NOT INVOKE THE PRINCIPLE OF ACCORD AND SATISFACTION. BY VIRTUE OF THE PROVISIONS OF SEC. 391 OF THE ACT, A SCHEME IS STAT UTORILY BINDING EVEN ON CREDITORS , AND SHAREHOLDERS WHO DISSENTED FROM OR OPPOSED TO ITS BEING SANCTIONED. IT HAS STATUTORY FORCE IN THAT SENSE AND THEREFORE CANNOT BE ALTERED EXCEPT WITH THE SANCTION OF THE COURT EVEN IF THE SHAREHOLDERS AND THE CREDITORS ACQUIESCE IN SUCH ALTERATION . (UNDERLINING PROVIDED BY US) 4.5.2. WE FIND THAT THE AFORESAID OBSERVATIONS OF T HE HONBLE SUPREME COURT HAD BEEN FOLLOWED BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SADANAND V ARDE AND OTHERS VS STATE OF MAHARASHTRA REPORTED IN 247 ITR 609 (BO M) WHEREIN IT WAS HELD THAT : ONCE A SCHEME BECOMES SANCTIONED BY THE COURT, IT CEASES TO OPERATE AS A MERE AGREEMENT BETWEEN THE PARTIES AND BECOMES BINDING O N THE COMPANY, THE CREDITORS AND THE SHAREHOLDERS AND HAS STATUTORY OP ERATION BY VIRTUE OF THE PROVISIONS OF SECTION 391 OF THE COMPANIES ACT. THE SAID JUDGEMENT OF HONBLE BOMBAY HIGH COURT FUR THER PROVIDED THAT AN APPEAL, IF ANY, AGAINST THE ORDER OF AMALGAMATION LIES U/S 391 (7) OF THE COMPANIES ACT, 1956 AND THE SAME CANNOT BE AGITATED IN ANY COLLATERAL PROCE EDING. THE RELEVANT EXTRACT OF THE SAME IS REPRODUCED HEREUNDER FOR THE SAKE OF READY REFERENCE :- WE ARE OF THE VIEW THAT THE AMALGAMATION, WHICH HA S BECOME FINAL AND BINDING, CANNOT BE PERMITTED TO BE CHALLENGED BY THE PETITIO NERS, WITHOUT LOCUS STANDI, IN A COLLATERAL PROCEEDING IN THE PRESENT WRIT PETITION. AN AMALGAMATION ORDER CAN ONLY BE CHALLENGED UNDER THE COMPANIES ACT BY AN AP PEAL UNDER SECTION 291(7) BY ANY ONE OF THE PARTIES, BUT NO SUCH APPEAL WAS E VER FILED. IN THE INSTANT CASE BEFORE US, THE LD AR INFORMED T HAT THE INCOME TAX DEPARTMENT , WHICH IS PART OF UNION OF INDIA, HAD NOT FILED ANY APPEAL U/S 391(7) OF THE COMPANIES ACT, 1956 AGAINST THE ORDER OF AMALGAMATION SANCTIO NED BY THE HONBLE HIGH COURT. THIS FACT WAS NOT CONTROVERTED BY THE LD DR BEFORE US. 10 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 10 4.6. THE LD AR FURTHER ARGUED THAT THE SCHEME OF A MALGAMATION, AS SANCTIONED BY THE HONBLE CALCUTTA HIGH COURT, WAS EFFECTIVE FROM 1.4 .2010 AND THE PARTIES HAD ACTED ACCORDING TO THE SAID SCHEME AND CANNOT BE SUBJECTE D TO REVERSAL AFTER A PERIOD OF 7 YEARS BY VIRTUE OF THE PRINCIPLE OF RES JUDICATA , CONSTRUCTIVE RES JUD ICATA AND ACQUIESCENCE . IN THIS REGARD, THE LD AR PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF FORWARD CONSTRUCTION C O. AND OTHERS VS PRABHAT MANDAL REPORTED IN 1986 AIR 391 (SC) WHEREIN IT WAS HELD THAT : THE PRINCIPLE UNDERLYING EXPLANATION IV IS THAT WH ERE THE PARTIES HAVE HAD AN OPPORTUNITY OF CONTROVERTING A MATTER THAT SHOULD B E TAKEN TO BE THE SAME THING AS IF THE MATTER HAD BEEN ACTUALLY CONTROVERTED AND DECIDED. IT IS TRUE THAT WHERE A MATTER HAS BEEN CONSTRUCTIVELY IN ISSUE IT CANNOT BE SAID TO HAVE BEEN ACTUALLY HEARD AND DECIDED . IT COULD ONLY BE DEEMED TO HAV E BEEN HEARD AND DECIDED. WE FIND THAT IN THE INSTANT CASE, THE INCOME TAX DE PARTMENT HAD THE OPPORTUNITY TO CONTROVERT THE SPECIFIC CLAUSE MENTIONED IN PARA 10 (III) IN THE SCHEME OF AMALGAMATION , WHEN THE SCHEME WAS PRESENTED BEFORE THE HONBLE HI GH COURT FOR APPROVAL. THUS APPLYING THE PRINCIPLES OF RES JUDICATA AS EXPLAINE D BY THE HONBLE APEX COURT IN THE AFORESAID CASE, THE ISSUE CAN BE DEEMED TO BE HEARD AND DECIDED . ACCORDINGLY, THE ARGUMENT THAT THE SAME CANNOT BE AGITATED IN APPEAL U/S 391(7) OF THE COMPANIES ACT, 1956 DESERVES ATTENTION AND MERIT. THE ENGLISH COURT OF CHANCERY IN CASE OF HENDERSON VS HENDERSON REPORTED IN (1843-60) ALL ER REP 378 WHILE CONSTRUING EXPLANATION IV TO SECTION 11 OF CODE OF CIVIL PROCE DURE QUOTED HEREUNDER:- THE PLEA OF RES JUDICATA APPLIES, EXCEPT IN SPECIAL CASE (SIC), NOT ONLY TO POINTS UPON WHICH THE COURT WAS ACTUALLY REQUIRED BY THE P ARTIES TO FORM AN OPINION AND PRONOUNCE A JUDGEMENT, BUT TO EVERY POINT WHICH PROPERLY BELONGED TO THE SUBJECT OF LITIGATION AND WHICH THE PARTIES, EXERCI SING REASONABLE DILIGENCE, MIGHT HAVE BROUGHT FORWARD AT THE TIME. 4.7. IT WOULD BE RELEVANT TO NOTE THA THE SCHEME O F AMALGAMATION WAS APPROVED ON 6.10.2010 AND INTIMATION TO THIS EFFECT WAS SENT BY THE ASSESSEE TO THE INCOME TAX DEPARTMENT IN JANUARY 2011 (COPIES OF LETTERS ENCLO SED IN PAGES 33 TO 37 OF PAPER BOOK) 11 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 11 . THE SAME WAS ACTED UPON BY THE ASSESSEE ASSUMING ACCEPTANCE FROM THE INCOME TAX DEPARTMENT SINCE NO APPEAL AGAINST THE SAID JUDGEME NT OF THE HONBLE HIGH COURT WAS FILED BEFORE THE HONBLE SUPREME COURT. THUS, AT TH IS JUNCTURE, IF THE REVENUE IS ALLOWED TO CHALLENGE THE SAME U/S 391(7) OF THE COMPANIES A CT, 1956, THEN IT WOULD BE CLEARLY BARRED BY THE DOCTRINE OF ACQUIESCENCE AND ESTOPPEL . IN LAW, ACQUIESCENCE OCCURS WHEN A PERSON KNOWINGLY STANDS BY WITHOUT RAISING ANY OB JECTION TO THE INFRINGEMENT OF HIS OR HER RIGHTS, WHILE SOMEONE ELSE UNKNOWINGLY AND WITH OUT MALICE AFORETHOUGHT ACS IN A MANNER INCONSISTENT WITH THEIR RIGHTS. AS A RESULT OF ACQUIESCENCE, THE PERSON WHOSE RIGHTS ARE INFRINGED MAY LOSE THE ABILITY TO MAKE A LEGAL CLAIM AGAINST THE INFRINGER, OR MAY BE UNABLE TO OBTAIN AN INJUNCTION AGAINST CONTI NUED INFRINGEMENT. THE DOCTRINE INFERS A FORM OF PERMISSION THAT RESULTS FROM SIL ENCE OR PASSIVENESS OVER AN EXTENDED PERIOD OF TIME. APPLYING THIS PRINCIPLE TO THE IN STANT CASE BEFORE US, THE ASSESSEE PROBABLY PAID A CONSIDERATION FOR THE SET OFF OF AC CUMULATED LOSSES TAKEN OVER FROM THE AMALGAMATING COMPANIES AND ACCORDINGLY THE SHARE EX CHANGE RATIO (AS APPROVED UNDER THE SCHEME) WAS ACTED UPON ASSUMING ACCEPTANCE FROM THE INCOME TAX DEPARTMENT. THUS BY APPLYING THE DOCTRINE OF ACQUIESCENCE, THE DEPARTMENT WOULD BE NOW BARRED FROM RAISING AN OBJECTION TO THE SCHEME. FURTHER A CLAIM OF ESTOPPEL ARISES WHEN ONE PARTY GIVES LEGAL NOTICE TO A SECOND PARTY OF A FAC T OR CLAIM, AND THE SECOND PARTY FAILS TO CHALLENGE OR REFUTE THAT CLAIM WITHIN A REASONABLE TIME. THE SECOND PARTY MAY BE SAID TO HAVE ACQUIESCED TO THE CLAIM, AND THUS TO BE EST OPPED FROM LATER CHALLENGING IT OR MAKING A COUNTERCLAIM BASED UPON THE ACTIONS OF TH E OTHER PARTY. IN THE INSTANT CASE ALSO, THE FACT OF AMALGAMATION WAS INTIMATED TO THE INCOME TAX DEPARTMENT 7 YEARS BACK AGAINST WHICH NO APPEAL WAS PREFERRED BY THEM. ACC ORDINGLY THE CLAIM OF ESTOPPEL APPLIES. THESE DOCTRINES OF ESTOPPEL AND ACQUIESC ENCE HAD BEEN APPROVED BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF SURESH K UMAR RUNGTA AND ORS VS ROADCO INDIA PVT LTD DATED 22.9.2011 WHEREIN THE HONBLE CALCUTTA HIGH COURT UPHELD THE VIEW OF TRIAL COURT WHEREIN IT WAS HELD THAT THE PRESENT APPELLANTS / APPLICANTS HAD KNOWLEDGE ABOUT THE PASSING OF ORDER OF WINDING UP. THEY HAD KNOWLEDGE OR HAVE HAD 12 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 12 OCCASION TO COME BEFORE THIS COURT EARLIER, AND DID NOT COME BECAUSE THEY HAVE ACCEPTED LEGALITY AND VALIDITY OF AMALGAMATION. APPLYING THE DOCTRINE OF ACQUIESCENCE AND ESTOPPEL THE HONBLE COURT HELD THAT IT APPEARS TO US ALL THE APPELLANTS HAVE ACCEPTED THE SCHEME OF AMALGAMATION AND NOW THESE COMPANIES AGAINST WHOM RELIEF IS SOUGHT FOR A RE NO LONGER IN EXISTENCE AND THEY CANNOT BE REVERTED BACK TO THEIR EARLIER POSITION A S BY THIS TIME THIRD PARTIES RIGHT HAVE BEEN CREATED BY REALLOCATION OR REALLOTMENT OF SHAR EHOLDING FOR THERE MAY BE FRESH SUBSCRIBING. IN TRUE SENSE THERE HAS BEEN SEA CHAN GE IN THE SHAREHOLDING PATTERN OF THESE COMPANIES. THEREFORE WE DISMISS THE APPEAL. 4.8. IN VIEW OF THE AFORESAID OBSERVATIONS AND FIND INGS IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT THE ACCUMULATED LOSSES OF AM ALGAMATING COMPANIES, COMPRISING OF UNABSORBED SHORT TERM CAPITAL LOSS OF RS 10,26,4 4,123/- ; UNABSORBED LONG TERM CAPITAL LOSS OF RS 6,34,784/- AND UNABSORBED BUSINE SS LOSS OF RS 6,63,574/- , WOULD BELONG TO THE AMALGAMATED COMPANY PURSUANT TO CLAUS E IN PARA 10(III) OF THE SCHEME OF AMALGAMATION WHICH WAS APPROVED BY THE HONBLE CALC UTTA HIGH COURT VIDE ORDER DATED 6.10.2010. SINCE THE LOSSES BELONGED TO THE AMALGAMATED COMPANY I.E THE ASSESSEE HEREIN, THE PROVISIONS OF SECTION 72 AND S ECTION 74 OF THE ACT WOULD COME INTO PLAY WITH RESPECT TO SET OFF OF THE SAME AGAINST TH E RESPECTIVE INCOMES OF THE ASSESSEE . IN VIEW OF THIS, THE PROVISIONS OF NON-COMPLIANCE O F SECTION 72A OF THE ACT AS NARRATED BY THE LD CITA DOES NOT HOLD ANY WATER. ACCORDIN GLY, THE GROUNDS 1 & 2 RAISED BY THE ASSESSEE ARE ALLOWED. 5. THE GROUND NO. 3 RAISED BY THE ASSESSEE WAS STAT ED TO BE NOT PRESSED BY THE LD AR DURING THE COURSE OF HEARING FOR WHICH NECESSARY EN DORSEMENT WAS MADE IN OUR FILE. ACCORDINGLY THE GROUND NO. 3 RAISED BY THE ASSESSEE IS DISMISSED AS NOT PRESSED. 13 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 13 6. THE LAST ISSUE TO BE DECIDED IN THIS APPEAL IS A S TO WHETHER THE LD CITA WAS JUSTIFIED IN CONFIRMING THE DISALLOWANCE OF LONG TERM CAPITAL LOSS OF RS 62,12,753/- WITHOUT SECURITIES TRANSACTION TAX (STT) AND NOT ALLOWING T HE SAME TO BE CARRIED FORWARD, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 6.1. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSE SSEE INCURRED LONG TERM LOSSES OF RS 62,12,753/- ON SALE OF 1066797 UNQUOTED SHARES OF M /S GK & SONS PVT LTD WHICH WERE SOLD AT RS 2 PER SHARE ON 31.3.2011. THE ASSESSEE IN SUPPORT OF ITS CLAIM PRODUCED COPY OF INVOICE RAISED ON THE PURCHASE I.E MALAY COMMERC IAL ENTERPRISES LTD AND EXTRACTS OF REGISTER OF SHAREHOLDERS EVIDENCING THE TRANSFER OF SHARES IN THE NAME OF THE PURCHASER. THE LD AO OBSERVED THAT THE SAME COMPANY SHARES WER E SOLD BY THE ASSESSEE IN MAY 2010 AT RS 13.50 PER SHARE. ACCORDINGLY, THE LD AO CHALLENGED THE SALE PRICE CARRIED OUT ON 31.3.2011 AND HELD THAT THE ASSESSEE FAILED TO PROVE THAT RS 2 PER SHARE CONSTITUTED MARKET VALUE AS ON 31.3.2011. WITH THE SE OBSERVATIONS, THE LD AO DISALLOWED THE CLAIM OF LONG TERM CAPITAL LOSS OF R S 62,12,753/- WITHOUT STT IN THE ASSESSMENT AND DID NOT ALLOW THE SAME TO BE CARRIED FORWARD TO SUBSEQUENT ASSESSMENT YEARS . THIS ACTION OF THE LD AO WAS UPHELD BY T HE LD CITA. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUND:- 4. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A), CENTRAL-II, KOLKATA WAS ALSO NOT JUSTIFIED IN CONFIRMING THE DISALLOWANCE O F LONG TERM CAPITAL LOSS OF RS. 62,12,753/- WITHOUT STT AND NOT ALLOWING THE SA ME TO BE CARRIED FORWARD. 6.2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD INCLUDING THE PAPER BOOK OF THE ASSESSEE. THE CONT ENTS OF THE PAPER BOOK ARE AS UNDER:- A) INVOICE RAISED ON MALAY COMMERCIAL ENTERPRISES L TD FOR SALE OF SHARES ENCLOSED IN PAGE 1 OF PB ; B) RELEVANT EXTRACTS OF REGISTER OF SHAREHOLDERS SH OWING THE TRANSFER OF SHARES IN FAVOUR OF MALAY COMMERCIAL ENTERPRISES LTD ENCLOSED IN P AGES 2 & 3 OF PB. 14 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 14 THE LD AR ARGUED THAT BY SUBMITTING THE AFORESAID D OCUMENTS BEFORE THE LD AO , THE ASSESSEE HAD DULY DISCHARGED ITS BURDEN OF PROVING THE GENUINENESS OF THE LOSSES CLAIMED BY IT IN THE RETURN. THE LD AO DID NOT POI NT OUT ANY DISCREPANCY IN THE INVOICE OR IN THE REGISTER OF SHAREHOLDERS PRODUCED BY THE ASSESSEE. HE FURTHER ARGUED THAT THERE IS NO PROVISION IN THE INCOME TAX ACT TO INCREASE T HE CONSIDERATION OF ASSESSEE AND HENCE THE SHARE SALE CONSIDERATION AT RS 2 PER SHAR E DISCLOSED BY THE ASSESSEE SHOULD BE ACCEPTED BY THE REVENUE. HE PLACED RELIANCE ON TH E DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF K.P.VARGHESE REPORTED IN 131 I TR 597 (SC) IN THIS REGARD. IN RESPONSE TO THIS, THE LD DR VEHEMENTLY RELIED ON TH E ORDERS OF THE LOWER AUTHORITIES. WE FIND THAT IT IS NOT IN DISPUTE THAT THE 100797 S HARES OF GK SONS PVT LTD WERE HELD BY THE ASSESSEE FOR A PERIOD OF MORE THAN 12 MONTHS FR OM THE DATE OF ITS PURCHASE. THE PURCHASE CONSIDERATION THEREON IS NOT DISPUTED BY T HE REVENUE. WE FIND THAT THE ASSESSEE HAD PRODUCED THE REQUISITE EVIDENCES AND D OCUMENTS IN SUPPORT OF ITS CLAIM AND THE SALE CONSIDERATION REPORTED THEREIN HAD BEEN DO UBTED BY THE LD AO. IN SUCH CIRCUMSTANCES, IT IS INCUMBENT ON THE PART OF THE L D AO TO MAKE FURTHER INVESTIGATIONS BY CROSS VERIFYING THE SAME FROM THE PURCHASER OF SHAR ES I.E MALAY COMMERCIAL ENTERPRISES LTD IN THE PROCEDURE KNOWN TO LAW. WITHOUT DOING S O, HE CANNOT SIMPLY DISBELIEVE THE CONSIDERATION REPORTED BY THE ASSESSEE AND DISALLOW THE LONG TERM CAPITAL LOSS CLAIMED THEREON. THERE IS NO MATERIAL BROUGHT ON RECORD B Y THE REVENUE TO CONTROVERT THE CLAIM OF THE ASSESSEE OR ANY MATERIAL THAT WOULD SHOW THA T THE ASSESSEE HAD SOLD AT A PRICE HIGHER THAN RS 2 PER SHARE. IN THE INSTANT CASE, I F THE REVENUE ALLEGES THAT THE ASSESSEE SALE CONSIDERATION OF RS 2 PER SHARE HAS BEEN GROS SLY UNDERSTATED, THEN THE ONUS IS ON THE REVENUE TO PROVE WITH COGENT MATERIALS THAT THE ASSESSEE HAD INDEED RECEIVED HIGHER SALE PRICE MORE THAN RS 2 PER SHARE. IN THIS REGA RD, THE HONBLE SUPREME COURT IN THE CASE OF K.P.VARGHESE VS ITO REPORTED IN 131 ITR 597 (SC) HAD HELD THAT : IT IS A WELL SETTLED RULE OF LAW THAT THE ONUS OF ESTABLISHING T HAT THE CONDITIONS OF TAXABILITY ARE FULFILLED IS ALWAYS ON THE REVENUE AND THE SECOND C ONDITION BEING AS MUCH A CONDITION OF TAXABILITY AS THE FIRST, THE BURDEN LIES ON THE REV ENUE TO SHOW THAT THERE IS AN 15 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 15 UNDERSTATEMENT OF THE CONSIDERATION AND THE SECOND CONDITION IS FULFILLED. (UNDERLININ G PROVIDED BY US). TO THROW THE BURDEN OF SHOWING TH AT THERE IS NO UNDERSTATEMENT OF THE CONSIDERATION, ON THE ASSESSEE WOULD BE TO CAST AN ALMOST IMPOSSIBLE BURDEN UPON HIM TO ESTABLISH A NEGATIVE, THAT HE DID NOT RECEIVE AN Y CONSIDERATION BEYOND THAT DECLARED BY HIM . THOUGH THIS DECISION WAS RENDERED IN THE CONTEX T OF ERSTWHILE PROVISIONS OF SECTION 52(2) OF THE ACT WHICH WAS LATER OMITTED FR OM THE STATUTE, THE RATIO DECIDENDI WOULD BE APPLICABLE TO THE FACTS OF THE INSTANT CAS E. NO ENQUIRIES WHATSOEVER WERE CONDUCTED IN THE HANDS OF THE PURCHASER OF SHARES. WE FIND THAT THE ENTIRE DISALLOWANCE OF LONG TERM CAPITAL LOSS HAD BEEN MADE ONLY OUT OF SURMISES, SUSPICION AND CONJECTURES. IN VIEW OF THESE FINDINGS IN THE FACTS AND CIRCUMST ANCES OF THE CASE, WE HOLD THAT THE ASSESSEE WOULD BE ENTITLED TO CLAIM THE LONG TERM C APITAL LOSS OF RS 62,12,753/- AND THE SAME WOULD BE ELIGIBLE TO BE CARRIED FORWARD TO SUB SEQUENT YEARS FOR SET OFF AGAINST LONG TERM CAPITAL GAINS U/S 74 OF THE ACT. ACCORDINGLY , THE GROUND NO. 4 RAISED BY THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 09.03. 2018 SD/- SD/- [A.T. VARKEY] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 09.03.2018 SB, SR. PS 16 ITA NO.2145/KOL/2014 ELECTROCAST SALES INDIA LTD. A.YR.2011-12 16 COPY OF THE ORDER FORWARDED TO: 1. ELECTROCAST SALES INDIA LTD., 19, CAMAC STREET, KOLKATA-700017. 2. DCIT, CC-XXI, KOLKATA, AAYAKAR BHAWAN POORVA, 11 0, SHANTIPALLY, 5 TH FLOOR, KOLKATA-700107. 3. C.I.T(A)- , KOLKATA 4. C.I.T.- K OLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S