The ITO, Ward-6(4), Ahmedabad V. M/s. Alta Inter Chem Industries, Ahmedabad

ITA 223/AHD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63021 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-06-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 25-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: MUKESH M PATEL
• Keywords: Capital asset; Question of law; Fair market value
• Section: 147; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI A. MOHAN ALANKAMONY, AM AND SHRI KUL B HARAT, JM) ITA NO.223/AHD/2012 AY: 2008-09 THE INCOME TAX OFFICER, W-6(4), ROOM NO.505, 5 TH FLOOR, PRATYAKSH KAR BHAVAN, B/H. AHMEDABAD STOCK EXCHANGE, AMBAWADI, AHMEDABAD 380 015 VS M/S. ALTA INTER-CHEM INDUSTRIES, PLOT NO.286, PHASE- 2, GIDCM, VATVA, AHMEDABAD P. A. NO. ANNFA 1402 H (APPELLANT) (RESPONDENT) APPELLANT BY SHRI RAHUL KUMAR, SR. DR RESPONDENT BY SHRI MUKESH M. PATEL, AR DATE OF HEARING: 28-08-2012 DATE OF PRONOUNCEMENT: 19-10-2012 O R D E R PER A. MOHAN ALANKAMONY: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT (A )-XI, AHMEDABAD IN ITA NO.CIT (A)XI/388/W 6(4)/10-11 DATED 28.11.2011 FOR THE ASSESSMENT YEAR 2008-09. 2. THOUGH THE REVENUE HAS RAISED THREE GROUNDS, THE CRUX OF THE ISSUE IS THAT THE CIT (A) ERRED IN DELETING RS.92, 07,817/- MADE BY THE AO UNDER THE HEAD CAPITAL GAINS. 3. BRIEFLY, THE ASSESSMENT IN THE CASE OF THE ASSES SEE FIRM WAS RE- OPENED UNDER SECTION 147 OF THE ACT BY ISSUANCE OF A NOTICE U/S 148 OF THE ACT ON THE GROUND, ACCORDING TO THE AO, THAT DURING THE COURSE 2 OF ASSESSMENT PROCEEDINGS FOR THE AY 2007-98, IT WA S NOTICED THAT ON 30.3.2007, THE ASSETS OF THE FIRM CONSISTING OF LAN D AND BUILDING HAVE BEEN REVALUED BY THE ASSESSEE IN THE FOLLOWING MANN ER: BOOK VALUE ENHANCED VALUE DIFFERENCE I. LAND 25,36,281 1,18,49,500 93,13,219 II. BUILDING 22,35,402 21,30,000 (-) 1,05,402 TOTAL 92,07,817 IT WAS, FURTHER, OBSERVED BY THE AO THAT ON 16.3.20 07, THERE WAS A MAJOR CHANGE IN THE SHARE-HOLDING PATTERN OF THE FI RM AND FIVE NEW PARTNERS HAVE BEEN INTRODUCED. IT WAS THE STAND OF THE AO THAT THIS WAY, BY REVALUATION OF ASSETS, THE INVESTMENTS MADE BY THE NEW PARTNERS HAD APPRECIATED WITHOUT PAYING ANY TAXES. IT WAS THE CASE OF THE AO THAT AS THE ASSESSEE HAD NOT FULFILLED TH E PROVISIONS OF S.47 (XIII) OF THE ACT, IT WAS DISENTITLED FOR EXEMPTION AND, THUS, CAPITAL GAINS U/S 45(IV) OF THE ACT WAS ATTRACTED IN THIS C ASE. ACCORDINGLY, AN ADDITION OF RS.92.07 LAKHS WAS MADE UNDER THE HEAD CAPITAL GAINS. AGGRIEVED, THE ASSESSEE HAD APPROACHED THE LD. CIT (A) FOR RELIEF. AFTER DUE CONSIDERATION OF THE LENGTHY AND COMPREHE NSIVE SUBMISSION OF THE ASSESSEE AS RECORDED IN THE IMPUGNED ORDER U NDER CONSIDERATION, THE LEARNED CIT (A) HAD OBSERVED THU S: CIT(A)PAGE-NO-13 2.2IT IS SEEN THAT HONBLE COURTS INCLUDING AHMEDABAD TRI BUNAL ARE CONSISTENTLY TAKING A STAND THAT IN THE PROCESS OF CONVERSION FR OM FIRM TO COMPANY TRANSFER IS NOT INVOLV ED . ACCORDINGLY, APPRECIATION OF ASSETS IN THE PROCE SS OF CONVERSION IS NOT LIABLE TO BE TAXED UNDER THE HEAD CAPITAL GAIN S. 3 2.3. HONBLE AHMEDABAD ITAT IN THE CASE OF WELL PA CK PACKAGING V/S DCIT REPORTED AT 78 TTJ (AHD) 448 HAS HELD THAT REVALUAT ION OF DEPRECIABLE ASSETS AND CONVERSION OF PARTNERSHIP FIRM INTO COMPANY DOES NO T LEAD TO INCIDENCE OF CAPITAL GAIN IN AS MUCH AS REVALUATION IS MADE IN THE HANDS OF THE ASSESSEE BY WRITING UP THE VALUE OF ASSETS IN THE BOOKS. IN VIEW OF THE P ROVISIONS OF SECTIONS 575, 576 AND 577 OF THE COMPANIES ACT, 1956, THERE IS NO TRA NSFER INVOLVED WHEN A COMPANY GOT ITSELF REGISTERED UNDER PART IX OF THE COMPANIES ACT. IN VIEW OF THIS, THERE IS NO QUESTION OF APPLICABILITY OF PROVISION OF SECTION 45 OR 50 OR ANY OTHER PROVISIONS OF IT ACT ARISE ON CONVERSION OF A FIRM INTO COMPANY. 2.4. HONBLE BANGALORE ITAT IN THE CASE OF ACIT, M ANGALORE V. UNITY CARE & HEALTH SERVICES REPORTED AT 106 TTJ (BANG) 1086 HAS HELD THAT TO BRING TO CHARGE CAPITAL GAINS TO TAX U/S 45 (IV), WHAT IS REQUIRED IS DISTRIBUTION OF CAPITAL ASSETS ON DISSOLUTION OF FIRM OR OTHERWISE. IT IS FURTHER HE LD BY HONBLE ITAT THAT IN CASE OF CONVERSION OF FIRM INTO PVT. LTD. COMPANY, THERE IS NEITHER DISSOLUTION OF FIRM NOR DISTRIBUTION OF CAPITAL ASSET TO PARTNERS AND, THEREFORE, IN SUCH A SITUATION, NO CAPITAL GAIN IS CHARGEABLE U/S 45(IV) OF I. T. ACT. IN THIS CASE, HONBLE ITAT HAS DISCUSSED PROVISIONS OF SECTION 47(XII) VIS--VIS P ROVISIONS OF SECTION 45(IV). HONBLE ITAT OBSERVED AS UNDER: INSERTION OF SECTION 47 (XI) HAS NOT CHANGED THIS SITUATION. SECTION 47(XIII) MERELY EXCLUDES CERTAIN TRANSFERS FROM THE PURVIEW OF DEFINITION OF THE WORD TRANSFER AS PROVIDED IN SECTION 247. TO BRI NG TO CHARGE CAPITAL GAIN U/S 45(IV), WHAT IS REQUIRED IS DISTRIBUTION OF CAP ITAL ASSET ON DISSOLUTION OF FIRM OR OTHERWISE. 2.5. IN THE INSTANT CASE, THERE IS NO DISTRIBUTION OF CAPITAL ASSET TO PARTNERS. THERE IS NO DISSOLUTION OF FIRM. PARTNERS, WHO WER E EARLIER TO REGISTER UNDER THE PARTNERSHIP ACT, WERE REGISTERED UNDER THE COMP ANIES ACT AND, ACCORDINGLY, SECTION 45(IV) WOULD NOT APPLY IN SUCH A SITUATION. ACCORDINGLY, NO CAPITAL GAIN WAS CHARGEABLE IN SUCH A SITUATION AS THERE IS NO DISTRIBUTION OF CAPITAL ASSET ON DISSOLUTION OF FIRM OR OTHERWIS E. IN THE INSTANT CASE ALSO, THERE IS NO DISTRIBUTION OF CAPITAL ASSET ON DISSOL UTION OF FIRM OR OTHERWISE. IN VIEW OF ABOVE FACTS, I AM OF THE CONSIDERED VIEW TH AT IN THE CASE OF REVALUATION OF ASSETS AND ITS CONVERSION OF FIRM INTO PVT. LTD COMPANY DOES NOT ATTRACT PROVISIONS OF SECTION 45(IV). ACCORDINGLY, THE ADD ITION MADE BY THE AO OF RS.92,07,817/- IS ORDERED TO BE DELETED.. 4. AGGRIEVED, THE REVENUE HAS COME UP BEFORE US WIT H A PLEA THAT THE CIT (A) HAD ERRED IN LAW IN DELETING THE ADDITI ON OF RS.92,07,817/- UNDER THE HEAD CAPITAL GAINS. IT WAS, FURTHER, S UBMITTED THAT THE AO HAD ANALYZED THE ISSUE IN DEPTH AND CAME TO A CONCL USION, BY EXTENSIVELY QUOTING VARIOUS JUDICIAL PRONOUNCEMENTS ON A SIMILAR 4 ISSUE, THAT THE CONTENTIONS OF THE ASSESSEE WERE RE JECTED ON THE FOLLOWING GROUNDS: (A) THE PART IX OF THE COMPANIES ACT, 1956 DOES N OT HAVE ANY OVER-RIDING EFFECT ON THE PROVISIONS OF I.T. ACT, 1 961 & (B) THE ASSESSEE FAILED TO PRODUCE EVIDENCES TO PRO VE THAT THE ASSESSEE FULFILLING ALL THE FOUR CONDITION OF SECTI ON 47 (XIII) TO ASCERTAIN WHETHER THE SUCCESSION OF FIRM BY THE COM PANY IS NOT A TRANSFER. 4.1 TO STRENGTHEN HIS ARGUMENTS, THE LEARNED D R HA D PLACED RELIANCE ON THE FOLLOWING CASE LAWS, NAMELY: (A) ITO V. OM NAMAH SHIVAY BUILDERS & DEVELOPERS (2011) 43 SOT 397; (B) GOEL UDYOG V. ACIT (2011) 45 SOT 444 (DEL) 4.2 IT WAS, THEREFORE, PLEADED THAT THE FINDINGS OF THE CIT (A) REQUIRE TO BE REVERSED AND THAT OF THE STAND OF THE AO IS TO BE RESTORED. 5. ON THE OTHER HAND, THE LEARNED A R VOCIFEROUSLY SUPPORTED THE FINDINGS OF THE CIT (A) ON THIS ISSUE. TO DRIVE HO ME HIS POINT THAT THE CIT (A) WAS WITHIN HIS REALM TO REVERSE THE STAND O F THE AO ETC., THE LEARNED AR REPOSED HIS CONFIDENCE ON THE FOLLOWING CASE LAWS: (I) ITO V. GULABDAS PRINTERS (2010) 4 ITR (TRIB) 264 (AHD); (II) WELL PACK PACKAGING V. DCIT(2003) 130 TAXMAN 215 (AHD) (III) ACIT V. UNITY CARE & HEALTH SERVICES 2006) 103 ITD 53(BANG) 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS, DILIGENTLY PERUSED THE RELEVANT CASE RECORDS AND ALSO THE CASE LAWS QUOTED BY EITHER PARTY. IT WAS THE STAND OF THE AO THAT IF TH E FULL CONTRIBUTIONS OF THE PARTNERS TAKEN, IT WAS NOTICED THAT THE SHARES IN THE COMPANY 5 HAVE NOT BEEN ALLOTTED IN THE SAME PROPORTION AS TH E CAPITAL ACCOUNTS OF THE PARTNERS AS THEY STOOD IN THE BOOKS OF THE F IRM ON THE DATE OF SUCCESSION. THEREFORE, IT WAS THE CASE OF THE AO, THAT PROVISO (B) TO S.47 (XIII) IS SQUARELY APPLICABLE TO THE ASSESSEE S CASE WHICH MADE THE TRANSFER OF THE ASSETS AND LIABILITIES OF THE F IRM LIABLE TO CAPITAL GAIN TAX. HE HAD ALSO FURTHER STATED THAT IF IT WERE TO BE HELD AT THE APPELLATE STATE THAT THE TWO CAPITAL ACCOUNTS WERE INDEED SEPARATE, EVEN THEN THE CONDITION PRESCRIBED IN PROVISO (C) T O S. 47(XIII) WAS NOT MET. THE SAID PROVISO SAYS THAT THE PARTNERS OF TH E FIRM WILL NOT RECEIVE ANY CONSIDERATION OR BENEFIT DIRECTLY OR IN DIRECTLY, IN ANY FORM OR MANNER FROM THE COMPANY EXCEPT BY WAY OF ALLOTME NT OF SHARES. HOWEVER, IN THE PRESENT CASE ALL THE 8 PARTNERS CU RRENT CAPITAL ACCOUNT HAS BEEN TAKEN BY THE COMPANY AS LOAN AND S O REFLECTED IN THE BALANCE SHEET. THEREFORE, IT WAS OBSERVED BY T HE AO, THE ERSTWHILE PARTNERS HAVE RECEIVED CONSIDERATION IN T HE FORM OF INTEREST AS WELL AS BENEFIT FROM THE COMPANY. THEREFORE, TH E SUCCESSION IS HIT BY THE PROVISO (C) TO S. 47(XIII) ALSO. 6.1 HOWEVER, THE CIT (A) TOOK A DIVERGENT VIEW, BY TAKING SHELTER ON THE FINDINGS OF VARIOUS JUDICIARY, THAT IN THE PROCESS OF CONVERSION FROM THE FIRM TO COMPANY, TRANSFER WAS NOT INVOLVED AND, THEREFORE, APPRECIATION OF ASSETS IN THE PROCESS OF CONVERSION WAS NOT LIABLE TO BE TAXED UNDER THE HEAD CAPITAL GAINS. AT THIS JUNCTURE, WE SHALL PROCEED TO ANALYZE THE J UDICIAL VIEWS ON A SIMILAR ISSUE AS UNDER: 6 (1) WELL PACK PACKING V. DCIT ITA NO.235/AHD/2001 DT.22.5.2001: IT WAS HELD BY THE HONBLE EARLIER BENCH OF THIS TR IBUNAL THAT SINCE THERE WAS NO TRANSFER ON CONVERSION OF THE FIRM INT O COMPANY UNDER PART IX OF THE COMPANIES ACT, THERE DOES NOT ARISE ANY QUESTION OF APPLICABILITY OF S.50 OR 45 OR ANY OTHER PROVISIONS OF THE ACT. 6.2 AGGRIEVED, THE REVENUE TOOK UP THE ISSUE BEFORE THE HONBLE JURISDICTIONAL HIGH COURT THROUGH A REFERENCE APPLI CATION. THE TAX APPEAL NO.368 OF 2001 OF THE REVENUE WAS, HOWEVER, DISMISSED BY THE HONBLE COURT WITH AN OBSERVATION THAT NO QUEST ION OF LAW, MUCH LESS SUBSTANTIAL QUESTION OF LAW AROSE OUT OF THE O RDER OF THE TRIBUNAL. THE REVENUE PREFERRED A SLP BEFORE THE HONBLE SUPR EME COURT AGAINST THE RULING OF THE HONBLE HIGH COURT (SUPRA ). THE HONBLE SUPREME COURT IN CIVIL APPEAL NO.8569 OF 2002 DATED 6.5.2008 HAD RULED AS UNDER: WE DO NOT AGREE WITH THE VIEW TAKEN BY THE HIGH COU RT. IN OUR OPINION, THE QUESTIONS OF LAW RAISED BY THE REVENUE BEFORE THE H IGH COURT ARE SUBSTANTIAL QUESTIONS OF LAW WHICH ARISE FROM THE ORDER OF THE TRIBUNAL. THE HIGH COURT SHOULD HAVE DECIDED THESE QUESTIONS BY RECORDING IT S FINDINGS THEREON. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE. TAX APPEAL NO.368 OF 2001 IS ADMITTED ON THE AFOREMENTIONED FOUR QUESTIONS OF LA W. WE REQUEST THE HIGH COURT TO RECORD ITS FINDINGS ON THESE QUESTIONS. T HE MATTER IS REMITTED TO THE HIGH COURT FOR A FRESH DECISION ON THE AFORESAID QU ESTIONS IN ACCORDANCE WITH LAW. AS PER THE REVENUES VERSION, THE APPEAL IS STILL P ENDING BEFORE THE HONBLE JURISDICTIONAL HIGH COURT FOR DISPOSAL [SOU RCE: AOS LETTER DATED 18.6.2012 TO THE D R] 7 (2) THE HONBLE ITAT, BANGALORE BENCH IN THE CASE O F ACIT, MANGALORE V. UNITY CARE & HEALTH SERVICES CITED SUP RA HAD OBSERVED AS UNDER: WHEN A CONVERSION OF A FIRM INTO COMPANY TAKES PLA CE UNDER THE PROVISIONS OF COMPANIES LAW, SUCH CONVERSION CAN BE CONSTRUED ONL Y AS OCCASIONED BY OPERATION OF LAW. HENCE, NO CONTROVERSY COULD ARIS E ON THE APPLICATION OF THAT PRINCIPLE EVEN FOR PURPOSES OF CAPITAL GAINS UNDER SECTION 45(4). BY INSERTION OF SECTION 47(XIII), IT CANNOT BE SAID THAT THE CONVER SION OF A FIRM INTO A COMPANY UNDER PART IX IS TO BE FIRST TREATED AS DISSOLUTION OF FIRM WITHIN THE MEANING OF SECTION 45(4) AND ONLY IF CONDITION AS CONTAINED IN SECTION 47(III) ARE COMPLIED WITH, THE EXEMPTION WILL BE AVAILABLE. SECTION 47(XIII) APPLIES ONLY TO A CASE OF TRANSFER BY SALE, BUT THERE IS NO AUTHORITY FOR CAPITAL GAIN AT ALL IN THE ABSENCE OF A TRANSFE R UNDER PART IX OF THE COMPANIES ACT INASMUCH AS SUCH CONVERSIONS DO NOT F ALL WITHIN THE DEFINITION OF TRANSFER UNDER SECTION 2(47). WHILE DISPOSING OFF OF THE REVENUES REFERENCE APPL ICATION AGAINST THE TRIBUNALS ORDER, THE HONBLE KARNATAKA HIGH CO URT HAD, IN ITA NO.3170/2005 DATED 5.7.2010, RULED AS UNDER: (ON PAGE 6) 5. IN THE INSTANT CASE, IT IS NOT IN DISPUTE THAT THE ASSETS OF THE PARTNERSHIP FIRM HAVE BECOME THE ASSETS OF THE COMP ANY. ALL THE PARTNERS OF THE FIRM HAVE BECOME THE SHAREHOLDERS OF THE COMPANY. IN PROPORTION TO THEIR SHARES IN THE PARTNERSHIP FIRM, THEY HAVE BEEN ALLOTTED SH ARES IN THE COMPANY. ADMITTEDLY, NO AMOUNT IS PAID IN ANY MANNER AND IN ANY FORM TO THE PARTNERS. IN THAT VIEW OF THE MATTER, THE IMPUGNED TRANSACTION I S NOT A TRANSFER SO AS TO ATTRACT CAPITAL GAINS UNDER S. 45. THEREFORE, THE TRIBUNAL WAS JUSTIFIED IN SETTING ASIDE THE ORDER PASSED BY THE FIRST APPELLATE AUTHORITY A S WELL AS THE ASSESSING AUTHORITY AND IN HOLDING THAT THE TRANSACTION IN QUESTION DOE S NOT CONSTITUTE A TRANSFER UNDER THE ACT. IN THAT VIEW OF THE MATTER, WE ANSW ER THE FIRST SUBSTANTIAL QUESTION OF LAW FRAMED, AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE (3) IN THE CASE OF ITO V. GULABDAS PRINTERS (SUPRA ), THE HONBLE EARLIER BENCH OF THIS TRIBUNAL HAD RECORDED ITS FIN DINGS AS UNDER: WHERE A FIRM BECOMES A LIMITED COMPANY UNDER PART IX OF THE COMPANIES ACT, 1956, SECTION 45(4) IS NOT ATTRACTED AS THE VERY FI RST CONDITION OF TRANSFER BY WAY OF DISTRIBUTION OF CAPITAL ASSET IS NOT SATISFIED. 8 IN THE CIRCUMSTANCES, LATTER PART OF SECTION 45(4) WHICH REFERS TO COMPUTATION OF CAPITAL GAINS UNDER SECTION 48 BY TREATING THE FAIR MARKET VALUE OF THE ASSET ON THE DATE OF TRANSFER, DOES NOT APPLY. AGGRIEVED, THE REVENUE HAD PREFERRED A REFERENCE AP PLICATION BEFORE THE HONBLE JURISDICTIONAL HIGH COURT IN TAX APPEAL NO.1559 OF 2010 WHICH, ACCORDING TO THE AO, IS STILL PENDING FOR DI SPOSAL BEFORE THE HONBLE COURT [REFER: AOS LETTER DATED 18.6.2012 T O THE D.R.] 6.3 LET US NOW ANALYZE THE CASE LAWS RELIED ON BY T HE REVENUE AS UNDER: (1) ITO V. OM NAMAH SHIVAY BUILDERS & DEVELOPERS: AFTER ANALYZING THE ISSUE IN DETAIL, THE HONBLE MU MBAI TRIBUNAL [(2011) 43 SOT 397] HAD CONCLUDED ITS FINDINGS AS U NDER: (ON PAGE 2) WHEN UPON RETIREMENT OF A PARTNER FROM PARTNERSHIP OF TWO PARTNERS, THE ASSETS WERE TAKEN OVER BY ONE PARTNER WHO CONTINUED THE BUSINESS AS A PROPRIETOR, THERE WAS A DISSOLUTION OF THE FIR M AND THEREFORE, THE DIFFERENCE BETWEEN THE FAIR MARKET VALUE OF THE ASSETS AND THE BOOK VALUE IN THE BOOKS OF THE FIRM WAS ASSESSABLE AS CAPITAL GAINS IN THE HANDS O F THE FIRM IN TERMS OF S. 45(4). WE HAVE, WITH DUE RESPECTS, PERUSED THE FINDINGS OF THE HONBLE BENCH AND OF THE CONSIDERED VIEW THAT IT HAS NO REL EVANCE TO THE ISSUE UNDER CONSIDERATION. IN THAT CASE, CONSEQUEN T ON THE RETIREMENT OF A PARTNER FROM THE PARTNERSHIP OF TWO PARTNERS, THE ASSETS WERE TAKEN OVER BY ANOTHER PARTNER WHO CONTI NUED THE BUSINESS AS A SOLE PROPRIETOR AND, THUS, THERE WAS A DISSOLUTION OF THE ERSTWHILE FIRM WHEREAS IN THE CASE UNDER CONSIDERAT ION, THERE WAS NO DISSOLUTION OF THE FIRM, BUT, CONVERSION OF THE FIR M INTO A COMPANY. 9 THUS, WE ARE OF THE CONSIDERED VIEW THAT THE CASE L AW RELIED ON BY THE REVENUE CANNOT COME TO ITS RESCUE. (2) GOEL UDOG V. ACIT (2011) 45 SOT 444 (DEL): THE FINDING OF THE HONBLE TRIBUNAL OF DELHI C BE NCH IS NOT APPLICABLE TO THE ISSUE UNDER CONSIDERATION IN THE SENSE THAT IN THAT CASE, ON DISSOLUTION OF FIRM AND DISTRIBUTION OF ASSETS T O PARTNER EXCESS OF MARKET VALUE OVER BOOK VALUE WITH REGARD TO LAND AND BUILDING AND PLANT AND MACHINERY HAS TO BE ASSESSED AS CAPITAL GAIN AS PER S.45 (4). HOWEVER, THE ISSUE BEFORE US, AS ALREADY MENTIONED, IS ON A DIFFERENT FOOTING AND, THUS, THE CASE LAW QUOTED BY THE LEARNED D R IS CLEARLY DISTINGUISHABLE. 6.4 TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTA NCES OF THE ISSUE AS DELIBERATED UPON IN THE FORE-GOING PARAGRAPHS, W E ARE OF THE CONSIDERED VIEW THAT THE CIT (A) WAS JUSTIFIED IN D ELETING THE ADDITION OF RS.92,07,817/- MADE BY THE AO UNDER THE HEAD C APITAL GAINS. IT IS ORDERED ACCORDINGLY. 7. IN THE RESULT , THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19-10-2012 SD/- SD/- (KUL BHARAT) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT LAKSHMIKANT LAKSHMIKANT LAKSHMIKANTA AA A DEKA/ DEKA/ DEKA/ DEKA/- -- - 10 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 04-10-2012 (DIRECT ON COMPUTE R) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 05-10-12 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DISPATCH OF THE ORDER: