ACIT, CHENNAI V. M/s. TVS Investments Limited, CHENNAI

ITA 2172/CHNY/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68697 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 19-03-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 24-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T N BETGIRI
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 50C; 14A; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER I.T.A. NO. 2172/MDS/2010 (ASSESSMENT YEAR : 2004-05) THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE III(2), CHENNAI - 600 034. (APPELLANT) V. M/S TVS INVESTMENTS LIMITED, JAYALAKSHMI ESTATE, NEW NO.29 (OLD NO.8), HADDOWS RD., CHENNAI - 600 006. PAN : AAACT 1154 H (RESPONDENT) APPELLANT BY : SHRI T.N. BETGIRI, JCIT RESPONDENT BY : SHRI VIKRAM VIJAYARAGHAV AN, ADVOCATE DATE OF HEARING : 19.03.2013 DATE OF PRONOUNCEMENT : 04.04.2013 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL FILED BY THE REVENUE, DIRECTED AGA INST AN ORDER DATED 29.9.2010 OF COMMISSIONER OF INCOME TAX (APPE ALS)-III, CHENNAI, IT HAS RAISED TWO GRIEVANCES. FIRST IS WI TH REGARD TO THE ALLOWABILITY OF CLAIM OF LONG TERM CAPITAL GAINS OF ` 28,42,089/- AND I.T.A. NO. 2172/MDS/10 2 SECOND IS REGARDING RESTRICTION OF DISALLOWANCE UND ER SECTION 14A TO 2% AGAINST 5% CONSIDERED BY THE ASSESSING OFFICER. 2. FACTS APROPOS FIRST ISSUE ARE THAT ASSESSEE HAD IN THE RETURN OF INCOME FILED, CLAIMED LONG TERM CAPITAL LOSS OF ` 1,49,54,474/- WHICH, INTER ALIA, INCLUDED A SUM OF ` 28,42,089/- WITH REGARD TO CERTAIN BUILDINGS AT MUMBAI, CHENNAI AND AHMEDABAD. ASSESS EE HAD CLAIMED THAT LONG TERM CAPITAL LOSS OF ` 28,42,089/- WAS ON ACCOUNT OF CANCELLATION OF AN AGREEMENT WHICH IT HAD ENTERED W ITH ONE M/S TVS FINANCE & SERVICES LIMITED ON 30.6.1999 / 30.3.2000 . AS PER THE ASSESSEE, EARLIER ON THESE DATES, IT HAD AGREED TO PURCHASE FROM M/S TVS FINANCE & SERVICES LIMITED, FLATS OWNED BY THEM AT CHENNAI, MUMBAI AND AHMEDABAD. ENTIRE SALE CONSIDERATION WA S ALSO PAID ON THESE DATES AND ASSESSEE HAD TAKEN POSSESSION AS WE LL. THEREAFTER, DESPITE LAPSE OF THREE YEARS, IT WAS NOT POSSIBLE T O GET THE PROPERTIES REGISTERED IN ASSESSEES NAME. IT WAS MUTUALLY AGR EED TO CANCEL THE AGREEMENTS FOR SALE ENTERED ON 30.6.1999 / 30.3.200 0. A CANCELLATION DEED DATED 1.12.2003 WAS EXECUTED AND THE AMOUNT EARLIER PAID WAS RETURNED TO THE ASSESSEE AND POSSE SSION GIVEN BACK TO M/S TVS FINANCE & SERVICES LIMITED. SINCE ASSES SEE RECEIVED THE SAME AMOUNT BACK ON CANCELLATION, ON INDEXATION OF THE COST, I.T.A. NO. 2172/MDS/10 3 THERE RESULTED A LONG TERM CAPITAL LOSS OF ` 28,42,089/-. THOUGH THE ASSESSING OFFICER PROPOSED TO APPLY SECTION 50C OF INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'), WHEN ASSESSEE POINTED OU T THAT THERE WAS NO REGISTRATION OF ANY DOCUMENTS, IT SEEMS SUCH PROPOS AL WAS DROPPED. NEVERTHELESS, HE HELD THAT THE PROPERTIES HAVING NO T BEEN REGISTERED IN ASSESSEES NAME AT ANY POINT OF TIME, THERE WAS NO ELEMENT OF TRANSFER AND ASSESSEE WAS NOT ENTITLED FOR ANY CLAI M OF CAPITAL LOSS. HE, THEREFORE, DENIED LONG TERM CAPITAL LOSS OF ` 28,42,089/- CLAIMED BY THE ASSESSEE. 3. IN ITS APPEAL BEFORE CIT(APPEALS), ARGUMENT OF T HE ASSESSEE WAS THAT THE AGREEMENTS FOR PURCHASE OF FLATS, WHIC H WERE USED AS TRANSIT HOUSES, WERE ENTERED IN FINANCIAL YEAR 1999 -2000 WITH M/S TVS FINANCE & SERVICES LIMITED. ACCORDING TO ASSES SEE, SALE CONSIDERATION DUE ON THE TRANSACTION WAS PAID BY TH E ASSESSEE THEN AND THERE. THE VALUE OF ASSETS WERE CAPITALIZED IN ITS BOOKS OF ACCOUNTS. RENTAL INCOME RECEIVED FROM SUCH PROPERT IES WERE OFFERED FOR TAX FROM ASSESSMENT YEAR 2000-01. M/S TVS FINA NCE & SERVICES LIMITED FROM WHOM THE TRANSIT HOUSES WERE PURCHASED , HAD OFFERED THE SURPLUS ARISING OUT OF SUCH SALE, FOR TAX UNDER THE HEAD CAPITAL GAINS IN THEIR RETURN OF INCOME. RELIANCE WAS PLA CED ON THE DECISION I.T.A. NO. 2172/MDS/10 4 OF HON'BLE APEX COURT IN THE CASE OF MYSORE MINERAL S LTD. V. CIT (239 ITR 775) AND ALSO THAT OF HON'BLE JURISDICTIONAL HI GH COURT IN THE CASE OF K.R. SRINATH V. ACIT (268 ITR 436). 4. LD. CIT(APPEALS) WAS IMPRESSED BY THESE ARGUMENT S. ACCORDING TO HIM, WHEN THE AGREEMENT FOR PURCHASE O F PROPERTY WAS CANCELLED, THERE WAS RELINQUISHMENT OF RIGHT. ASSE SSEE HAD PAID ADVANCE UNDER THE AGREEMENT WHICH GAVE A RIGHT OF S PECIFIC PERFORMANCE. WHEN AN AGREEMENT WAS CANCELLED AND V ENDOR WAS ALLOWED TO SELL THE PROPERTY TO ANYBODY ELSE, THERE WAS A RELINQUISHMENT OF THAT RIGHT AND SUCH RELINQUISHMEN T, ACCORDING TO LD. CIT(APPEALS), FELL WITHIN THE DEFINITION OF TRANSF ER COMING UNDER SECTION 2(47) OF THE ACT. THERE WAS A COST OF ACQU ISITION SINCE THE ASSESSEE ON ENTERING INTO THE AGREEMENT WITH M/S TV S FINANCE & SERVICES LIMITED HAD PAID THE CONSIDERATION IN FULL AND TAKEN POSSESSION OF THE PROPERTY. WHEN THE SAME AMOUNT W AS REPAID TO THE ASSESSEE, IT WAS THE CONSIDERATION FOR RELINQUI SHMENT OF ITS RIGHTS IN THE PROPERTY. THEREFORE, ACCORDING TO HIM, ASSE SSEE COULD CLAIM LOSS ARISING DUE TO INDEXATION. HE THUS ALLOWED TH E CLAIM OF ASSESSEE. I.T.A. NO. 2172/MDS/10 5 5. NOW BEFORE US, LEARNED D.R., STRONGLY ASSAILING THE ORDER OF CIT(APPEALS), SUBMITTED THAT THERE WAS NO ELEMENT O F TRANSFER IN THE TRANSACTIONS. ASSESSEE AT THE BEST FELL WITHIN THE SCOPE OF PART PERFORMANCE MENTIONED IN SECTION 53A OF TRANSFER O F PROPERTY ACT, 1882 AND THIS DID NOT GIVE IT ANY ABSOLUTE RIGHT OF OWNERSHIP. AS PER LEARNED D.R., ASSESSEE NEVER HAD LEGAL OWNERSHIP IN THE PROPERTIES. WHAT WAS PAID AT THE POINT OF TIME WHEN THE SALE AG REEMENT WAS ENTERED, WAS ONLY AN ADVANCE. SUCH ADVANCE CANNOT BE TREATED ON PAR WITH CONSIDERATION. ASSESSEE WAS TRYING TO TAK E ADVANTAGE OF THE PRICE INDEXATION ALLOWED UNDER THE STATUTE AND CLAI M AN INDEXATION LOSS, WHEN BOTH THE TRANSACTIONS REFLECTED THE SAME AMOUNT. THE ADVANCE GIVEN BY THE ASSESSEE WAS RETURNED BY THE V ENDOR AND NO GAIN OR LOSS AROSE. RELIANCE WAS PLACED ON THE DEC ISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT MINERAL D EVELOPMENT CORPORATION LTD. V. CIT (143 ITR 822) FOR HIS SUBMI SSION THAT UNLESS CONSIDERATION WAS THERE IN A TRANSACTION, SECTION 4 5 WOULD NOT BE ATTRACTED. ACCORDING TO HIM, CONSIDERATION WAS TOT ALLY ABSENT. CANCELLATION AGREEMENT CLEARLY SHOWED THAT THE PART IES WERE GOING BACK TO THE POSITION, AS THOUGH ORIGINAL AGREEMENT WAS NEVER ENTERED INTO. THEREFORE, ACCORDING TO HIM, CIT(APPEALS) FE LL IN ERROR IN ALLOWING SHORT TERM CAPITAL LOSS. I.T.A. NO. 2172/MDS/10 6 6. PER CONTRA, IN SUPPORT OF THE ORDER OF LD. CIT(A PPEALS), LEARNED A.R. SUBMITTED THAT ASSESSEE HAD COMPLETE POSSESSIO N FROM THE VERY DATE OF AGREEMENT WITH M/S TVS FINANCE & SERVICES L IMITED. ASSESSEE PAID FULL AMOUNT AS PER THE AGREEMENT. HE REITERATED THAT VENDOR HAD EVEN RETURNED CAPITAL GAINS ON SUCH TRAN SFER. ACCORDING TO HIM, SUCH TRANSACTION CAME WITHIN THE PURVIEW OF TRANSFER AS DEFINED IN SECTION 2(47) OF THE ACT. ASSESSEE HAD BECOME THE RIGHTFUL OWNER OF SAID PROPERTIES. WHEN THE ORIGIN AL AGREEMENT FOR SALE WAS CANCELLED SUBSEQUENTLY, WHAT WAS RECEIVED WAS CONSIDERATION FOR RELINQUISHMENT OF RIGHT OF SPECIF IC PERFORMANCE. ASSESSEE HAD RELEASED THE VENDOR FROM HIS OBLIGATIO N TO EXECUTE A CONVEYANCE DEED IN FAVOUR OF ASSESSEE AND ALSO GAVE BACK THE POSSESSION OF PROPERTY. WHILE GIVING THE POSSESSIO N BACK, AMOUNT RECEIVED WAS NOTHING BUT CONSIDERATION FOR RELINQUI SHMENT OF ITS RIGHTS. RELINQUISHMENT OF RIGHT ALSO FELL WITHIN T HE DEFINITION OF TRANSFER UNDER SECTION 2(47) OF THE ACT. RELIANC E WAS AGAIN PLACED ON THE DECISION OF HON'BLE APEX COURT IN THE CASE O F MYSORE MINERALS LTD. (SUPRA) FOR BUTTRESSING HIS ARGUMENT THAT REGI STRATION WAS NOT MANDATORY FOR EFFECTING A TRANSFER OF IMMOVABLE PRO PERTY UNDER SECTION 2(47) OF THE ACT. RELIANCE WAS ALSO PLACED ON THE DECISION OF I.T.A. NO. 2172/MDS/10 7 HONBLE KERALA HIGH COURT IN THE CASE OF K.N. NARAY ANAN V. ITO (173 ITR 61). ACCORDING TO HIM, THE TRANSACTIONS WERE N OT MAKE BELIEVE ONES FOR CLAIMING ANY ARTIFICIAL SHORT TERM CAPITAL LOSS. THE TRANSACTIONS WERE GENUINE ONES ENTERED IN NORMAL CO MMERCIAL DEALINGS. THEREFORE, ACCORDING TO HIM, BY VIRTUE O F THE DECISIONS OF HON'BLE APEX COURT IN THE CASE OF UNION OF INDIA V. AZADI BACHAO ANDOLAN AND ANOTHER (263 ITR 706) AND IN THE CASE O F CIT V. WALFORT SHARE & STOCK BROKERS (P) LTD. (326 ITR 1), THERE W AS NO REASON TO DOUBT THESE TRANSACTIONS. THUS THE SUBMISSION OF T HE LEARNED A.R. WAS THAT CIT(APPEALS) WAS JUSTIFIED IN ALLOWING THE CLAIM OF CAPITAL LOSS. 7. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. TO RESOLVE THE ISSUE, IT IS NECESSARY TO HAVE A LOO K AT THE AGREEMENT FOR CANCELLATION OF THE EARLIER AGREEMENT FOR SALE ENTERED BY THE ASSESSEE WITH M/S TVS FINANCE & SERVICES LIMITED. RELEVANT PART OF SUCH AGREEMENT IS REPRODUCED FOR BREVITY:- WHEREAS THE VENDOR AND THE PURCHASER HAD ENTERED IN TO AN AGREEMENT ON 30 TH DAY OF JUNE 1999 (HEREINAFTER REFERRED TO AS SAID AGREEMENT, WHEREIN THE VENDOR HAD AGREED TO SELL AND THE PURCHASER HAD AGREED TO PURCHASE THE FLAT N O.22, TOGETHER WITH THE PROPORTIONATE UNDIVIDED INTEREST IN LAND AT SAI RACHNA, 30, CORNER OF JUHU ROAD & TAGORE ROAD, T.P .S. II, I.T.A. NO. 2172/MDS/10 8 SANTACRUZ (WEST), BOMBAY 400 054 MORE FULLY DESCR IBED IN THE SCHEDULE HEREUNDER (HEREIN AFTER TO REFERRED AS SAI D PROPERTY) FOR A CONSIDERATION OF ` 73,00,000/- (RUPEES SEVENTY THREE LAKHS) AND ALSO AGREED TO SELL HARD FURNISHINGS VALUED AT ` 6,95,000/- (RUPEES SIX LAKH AND NINETY FIVE THOUSA ND ONLY) VIDE SEPARATE AGREEMENT DT. 30 TH JUNE 1999. WHEREAS THE PURCHASER HAD PAID THE ENTIRE CONSIDERA TION OF ` 79,95,000 (RUPEES SEVENTY NINE LAKHS AND NINETY FI VE THOUSAND ONLY) TOWARDS THE SAID PROPERTY AND HARD FURNISHING S AS AFORESAID AS ADVANCE WHICH THE VENDOR CONFIRMS RECE IPT. WHEREAS THE VENDOR COVENANTED TO EXECUTE THE SALE D EED AND HAND OVER POSSESSION OF THE SAID PROPERTY AND H ARD FURNISHINGS TO THE PURCHASER WITHIN A PERIOD OF 5 Y EARS FROM THE DATE OF EXECUTION OF THE SAID AGREEMENT. WHEREAS THE PARTIES HERETO FOR VARIOUS REASONS HAVE MUTUALLY AGREED TO CANCEL THE SAID AGREEMENT AS ALSO THE SAL E OF HARD FURNISHINGS AND RESTORE THE RIGHTS AND OBLIGATIONS OF THE VENDOR AND THE PURCHASER AS IF THE AGREEMENT HAS NO T BEEN ENTERED INTO. WHEREAS THE PARTIES ARE DESIROUS OF REDUCING THE TE RMS AND CONDITIONS OF THE AGREEMENT INTO WRITING. NOW THIS AGREEMENT WITNESSETH 1. THE AGREEMENT OF SALE OF THE SAID PROPERTY DT. 30.6 .1999 FOR SALE OF THE FLAT AND UNDIVIDED INTEREST IN LAND AT FLAT NO.22, SAI RACHNA, 30, CORNER OF JUHU ROAD & TAGO RE ROAD, T.P.S II, SANTACRUZ (WEST), BOMBAY 400 054 AND TH E AGREEMENT FOR SALE OF HARD FURNISHINGS DATED 30 TH JUNE 1999 STANDS CANCELLED WITH EFFECT FROM 1 ST DECEMBER 2003. 2. THE PURCHASER HEREBY COVENANTS THAT THEY HAVE NO FU RTHER RIGHTS OR CLAIMS IN RESPECT OF THE SAID PROPERTY AN D HARD FURNISHINGS AGAINST THE VENDOR, WHICH MIGHT HAVE AC CRUED OR ARISEN UNDER THE SAID AGREEMENT AND/OR THE AGREE MENT I.T.A. NO. 2172/MDS/10 9 FOR SALE OF HARD FURNISHINGS INCLUDING THE RIGHT OF SPECIFIC PERFORMANCE MENTIONED THEREIN. 3. THE VENDOR AS THE ABSOLUTE OWNER OF THE SAID PROPER TY MAY DEAL WITH THE SAME IN ANY MANNER THEY CHOOSE WI THOUT LET OR HINDRANCE FROM PURCHASER OR ANYBODY CLAIMING THR OUGH OR UNDER THEM. 4. THE PURCHASER CONFIRMS THAT IT HAD NOT DONE, EXECUT ED OR PERFORMED ANY ACT, DEED OR THING OR SUFFERED ANYTHI NG WHEREBY THE SAID PROPERTY MAY IN ANY WAY BE AFFECTE D OR PREJUDICED IN TITLE OR ESTATE OF THE VENDOR OR THAT THE PURCHASER MAY BE PREVENTED FROM CANCELLING THE SAID AGREEMENT AND THE AGREEMENT FOR SALE OF HARD FURNIS HINGS. 5. THE VENDOR AGREES TO RETURN THE ENTIRE CONSIDERATIO N OF ` 79,95,000 (RS.SEVENTY NINE LAKHS AND NINETY FIVE TH OUSAND ONLY) RECEIVED AS ADVANCE FROM THE PURCHASER ON OR BEFORE 31/12/2003. 6. IT IS FURTHER AGREED BETWEEN PARTIES THAT ALL STATU TORY RATES, CHARGES AND FEES CONNECTED WITH SAID PROPERT Y WILL BE BORNE BY THE VENDOR FROM 1.12.2003. IT IS CLEAR THAT ASSESSEE HAD PAID THE FULL CONSIDE RATION OF ` 79,95,000/- AT THE TIME WHEN IT ENTERED INTO THE AG REEMENT FOR SALE ON 30 TH JUNE, 1999. IT IS ALSO CLEAR THAT VENDOR WAS REQU IRED TO EXECUTE A SALE DEED WITHIN FIVE YEARS FROM THE DATE OF THE SA ID AGREEMENT. HOWEVER, PARTIES CHOSE THEMSELVES TO CANCEL THE ORI GINAL AGREEMENT FOR SALE. IT IS NOT DISPUTED THAT ASSESSEE HAD USE D THESE PROPERTIES FOR ITS OWN PURPOSES AND EVEN DECLARED RENTAL INCOM E IN ITS RETURN OF INCOME. IT IS ALSO NOT DISPUTED THAT ASSESSEE HAD CAPITALIZED THE ASSETS IN ITS BOOKS OF ACCOUNTS. HAVING PAID THE F ULL AMOUNT AS MENTIONED IN AGREEMENT FOR SALE AND ALSO HAVING TAK EN POSSESSION OF I.T.A. NO. 2172/MDS/10 10 THE PROPERTY, NO DOUBT, TRANSFER, IN OUR OPINION, S TOOD EFFECTED WITHIN THE MEANING OF CLAUSE (V) OF SECTION 2(47) OF THE A CT. 8. NOW THE ONLY QUESTION THAT REMAINS IS WHETHER BY VIRTUE OF THE CANCELLATION AGREEMENT DATED 1 ST DAY OF DECEMBER, 2003, PERTINENT PART OF WHICH HAS BEEN PRODUCED AT PARA 7 ABOVE, TH ERE WAS A TRANSFER OF THE SAME PROPERTY BACK TO THE OLD VENDO R. SUB-CLAUSE (1) OF SECTION 2(47) SAYS THAT TRANSFER IN RELATION T O A CAPITAL ASSET INCLUDES SALE, EXCHANGE AS WELL AS RELINQUISHMENT O F THE RIGHT. HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF K. R. SRINATH (SUPRA) HAS CLEARLY HELD THAT WHEN AN AGREEMENT FOR PURCHAS E OF PROPERTY IS CANCELLED, THERE WAS RELINQUISHMENT OF RIGHT AND SU CH RELINQUISHMENT OF RIGHT FELL WITHIN THE DEFINITION OF TRANSFER G IVEN IN SECTION 2(47) OF THE ACT GIVING RISE TO ASSESSABLE CAPITAL GAINS. I N OUR OPINION, LD. CIT(APPEALS) WAS JUSTIFIED IN PLACING RELIANCE ON T HE ABOVE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT FOR HIS RULING THAT BY VIRTUE OF CANCELLATION OF AGREEMENT FOR SALE, THERE WAS RELIN QUISHMENT OF RIGHT HELD BY THE ASSESSEE IN THE SUBJECT PROPERTY RESULT ING IN A TRANSFER. ONCE THERE IS A TRANSFER, IT IS LAWFUL FOR THE ASSE SSEE TO COMPUTE THE CAPITAL GAINS OR CAPITAL LOSS. WHILE IT IS DUTY BO UND TO COMPUTE THE CAPITAL GAINS, IT IS LAWFUL ON ITS PART TO COMPUTE AND CLAIM CAPITAL LOSS, I.T.A. NO. 2172/MDS/10 11 IF THE TRANSACTION RESULTED IN SUCH A LOSS. WE CA NNOT SAY THAT ASSESSEE IS IN FAULT IN COMPUTING THE CAPITAL LOSS. CAPITAL LOSS, OF COURSE, HAD COME OUT OF INDEXATION OF THE ORIGINAL PRICE, SINCE THE SAME AMOUNT WAS RECEIVED BACK BY THE ASSESSEE ON CA NCELLATION OF THE AGREEMENT. WHEN THE AGREEMENT WAS ENTERED AND PROPERTY TAKEN POSSESSION, THERE WAS A TRANSFER AND WHEN THE AGREEMENT WAS CANCELLED AND PROPERTY WAS GIVEN BACK TO THE ORIGIN AL VENDOR, THERE WAS A RE-TRANSFER. THE TRANSFER AND RE-TRANSFER AR E INDEPENDENT OF EACH OTHER. THE CANCELLATION AGREEMENT CANNOT BE I NTERPRETED TO MEAN THAT THE ORIGINAL TRANSFER WAS EFFACED. AS HE LD BY HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF SANOFI PAS TEUR HOLDING SA V. DEPARTMENT OF REVENUE (W.P. 14212/2010, 3399/201 2 AND 3858/2012 DATED 15.2.2013), WHILE INTERPRETING DOCU MENTS, INTENTION OF THE PARTIES SHOULD PREVAIL RATHER THAN THE CONTE XTUAL, GRAMMATICAL OR SYNTACTICAL MEANINGS. THAT THE COMPUTATION RESU LTED IN CAPITAL LOSS BECAUSE SAME AMOUNTS WERE INVOLVED IN BOTH THE TRAN SACTIONS IS, IN OUR OPINION, ONLY AN INCIDENTAL HAPPENING. COMING TO THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT M INERAL DEVELOPMENT CORPORATION LTD. (SUPRA), RELIED ON BY THE LEARNED D.R., NO DOUBT, IT WAS HELD THAT THERE SHOULD BE A CONSID ERATION FOR TRANSFER AND SECTION 45 WOULD NOT BE ATTRACTED WHEN THERE WA S NO I.T.A. NO. 2172/MDS/10 12 CONSTRUCTION. BUT, HERE, AS ALREADY MENTIONED BY U S, THERE IS NO CASE THAT THERE WAS NO CONSIDERATION. CONSIDERATION WAS PRESENT BUT IT WAS THE SAME AMOUNT, BOTH FOR TRANSFER AS WELL AS R E-TRANSFER. IN SUCH CIRCUMSTANCES, WE ARE OF THE OPINION THAT CIT( APPEALS) HAD TAKEN A RIGHT VIEW THAT ASSESSEES CLAIM WAS LEGITI MATE. WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF CIT( APPEALS). 9. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER WAS PRONOUNCED IN THE COURT ON THURSDAY, THE 4 TH OF APRIL, 2013, AT CHENNAI. SD/- SD/- (CHALLA NAGENDRA PRASAD) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 4 TH APRIL, 2013. KRI. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A)-III, CHENNAI (4) CIT, CHENNAI-I, CHENNAI (5) D.R. (6) GUARD FILE