Tornado Investments & Finance (P) Ltd., Baroda V. The ACIT.,Circle-4, Baroda

ITA 258/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94245 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 11-08-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 30-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C MISHRA
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Cost of acquisition; Initiation of penalty proceedings; Reasonable cause
• Section: 45(2); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFORE SHRI RAJPAL YADAV, J.M. & SHRI ANIL CHATURV EDI, A.M.) I.T. A. NO. 258/AHD/2012 (ASSESSM ENT YEAR: 2004-05) TORNADO INVESTMENTS & FINANCE (P) LTD., CREATIVE CASTLE, 70 SAMPATRAO COLONY, PRODUCTIVITY ROAD, BARODA-390 007 V/S ACIT, CIRCLE-4, BARODA (APPELLANT) (RESPONDENT) PAN: AAACT 6889M APPELLANT BY : MS. URVASHI SHODHAN, A.R. RESPONDENT BY : SHRI D.C. MISHRA, SR. D.R. ( )/ ORDER DATE OF HEARING : 11-08-2015 DATE OF PRONOUNCEMENT : 13 -08-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-III, BARODA DATED 19.12.2011 FOR A.Y. 2004-05. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN THE B USINESS OF INVESTMENT IN SHARES, SECURITIES AND FINANCE. ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. ITA NO 258/A HD/2012 . A.Y. 2004-0 5 2 2004-05 ON 26.10.2004 SHOWING TOTAL LOSS OF RS. 32, 42,000/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORDER DATED 29.09.2006 AND THE TOTAL L OSS WAS DETERMINED AT RS. 28,23,332/- INTERALIA BY DISALLOWING THE CLAIM OF L OSS ON SALE OF SHARES OF MARKET CREATORS LTD. . AGGRIEVED BY THE ORDER OF A. O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO UPHELD THE ORDER OF A. O. ON THE AFORESAID DISALLOWANCE THAT WAS CONFIRMED BY LD. CIT(A) A.O V IDE ORDER DATED 30.03.2010 WAS OF THE VIEW THAT ASSESSEE HAD WILLFU LLY KNOWINGLY AND WITHOUT REASONABLE CAUSE FURNISHED INACCURATE PARTI CULARS OF INCOME AND HAD TRIED TO CONCEAL INCOME SO AS TO EVADE PAYMENT OF T AXES AND HAS FURNISHED INACCURATE PARTICULARS OF INCOME AND WAS THEREFORE LIABLE FOR PENALTY U/S. 271(1)(C) OF THE ACT. HE ACCORDINGLY LEVIED PENALTY OF RS. 83,914/-. AGGRIEVED BY THE PENALTY ORDER OF A.O., ASSESSEE CA RRIED THE MATTER BEFORE LD. CIT(A) WHO UPHELD THE PENALTY ORDER OF A.O BY H OLDING AS UNDER:- 5.I HAVE CONSIDERED THE SUBMISSIONS FILED BY THE AP PELLANT AND THE CONTENTIONS OF THE A.O. IN THE INSTANT CASE, THE SHARES HAVE BEEN SOLD BY T HE APPELLANT TO THE DIRECTOR / HUSBAND OF THE DIRECTOR. FROM THE DETAILS, IT APPEARS THAT THE TRANSACTION WAS DONE OUTSIDE THE STOCK EXCHANGE. SHARES WERE SOLD AT THE PRICE OF 26 PAISA PER SHARE DESPITE THE FACT THAT BOOK VALUE OF SHARES WORKED OUT TO RS. 9.94. FURTHER, O NE DAY BEFORE THE DATE OF SALE, THESE SHARES WERE SOLD AT STOCK EXCHANGE @ 1.52 PER SHARE . HENCE THE SALE OF SHARES @ 26 PAISE PER SHARE WAS TOTALLY UNJUSTIFIED. THE APPELL ANT HAS NOT SUBMITTED ANY EVIDENCE TO SHOW THAT THE PRICE OF 26 PAISE PER SHARE WAS THE M ARKET RATE OF SHARES ON THE DATE OF THEIR SALE. IN SUCH CIRCUMSTANCES, IT IS TO BE HELD THAT THE APPELLANT HAD CLAIMED A WHOLLY UNJUSTIFIABLE LOSS AND HENCE, HAD FILED INACCURATE PARTICULARS OF INCOME. BESIDES, THE APPELLANT HAD ALSO CLAIMED THIS LOSS AS BUSINESS LO SS AND NOT AS CAPITAL LOSS DESPITE THE FACT THAT THE SHARES WERE SHOWN IN ITS BOOKS OF ACC OUNTS AS INVESTMENT AS ON 31.03.2003 AND IN EARLIER PERIODS. THE ACTION OF THE APPELLANT IN CLAIMING THE LOSS AS BUSINESS LOSS ALSO AMOUNTED TO FURNISHING OF INACCURATE PARTICULA RS. MOREOVER, THE APPELLANT HAS FAILED TO FILE ANY PLAUSIBLE EXPLANATION EITHER AT THE STA GE OF LEVY OF PENALTY OR DURING THE COURSE ITA NO 258/A HD/2012 . A.Y. 2004-0 5 3 OF APPELLATE PROCEEDINGS TO SHOW THAT THE PRICE OF SHARES TAKEN BY IT WAS A BONAFIDE PRICE AND ALSO THE CLAIM THAT THE LOSS WAS A BUSINESS LOS S WAS BONAFIDE. THE DECISION IN THE CASE OF RELIANCE PETR OPRODUCTS (P) LTD. (SUPRA) RELIED UPON BY THE APPELLANT ARE APPLICABLE ONLY TO A SITUATION WH ERE THE CLAIMS MADE BY AN ASSESSEE ARE LEGALLY JUSTIFIABLE OR SOME DEBATABLE ISSUE IS INVO LVED OR THE ASSESSEE FILES AN EXPLANATION WHICH HE IS ABLE TO SUBSTANTIATE AND IS ABLE TO PRO VE THAT SUCH EXPLANATION IS BONAFIDE AND THAT ALL THE FACTS RELATING TO THE SAME AND MAT ERIAL TO THE COMPUTATION OF HIS TOTAL INCOME HAVE BEEN DISCLOSED BY HIM. BUT IN THE PRESE NT CASE, DESPITE THE FACT THAT SHARES WERE SHOWN AS INVESTMENT IN THE BOOKS OF ACCOUNTS A S ON 31.03.2003, THE APPELLANT CLAIMED THE LOSS RESULTING FROM THEIR SALE AS BUSIN ESS LOSS IN ITS COMPUTATION OF INCOME FOR THE A.Y. 2004-05. BESIDES, THE SHARES WERE SOLD AT A MUCH LOWER RATE THAN THE MARKET RATE TO RELATED PERSONS TO CREATE AN ARTIFICIAL LOS S, WHOSE DETAILS CAME TO NOTICE ONLY AFTER THE CASE WAS SELECTED FOR SCRUTINY AND INVESTIGATIO NS WERE MADE BY THE ASSESSING OFFICER. THE APPELLANT HAS FAILED TO OFFER ANY EXPLANATION F OR TREATING THE CAPITAL LOSS AS BUSINESS LOSS IN ITS COMPUTATION OF INCOME AND ALSO FOR SALE OF SHARES TO RELATED PARTIES AT A MUCH LOWER RATE THAN THE MARKET RATE. THE ISSUES ARE NOT DEBATABLE AT ALL. THUS, THE APPELLANT HAS MADE WHOLLY UNJUSTIFIABLE AND LEGALLY UNTENABLE CLAIMS. SO FAR AS OTHER DECISIONS, RELIED UPON BY THE APPELLANT ARE CONCERNED, IT IS A SETTLED LAW THAT NO MENS REA IS REQUIRED TO BE ESTABLISHED BEFORE LEVYING PENALTY U /S 271(L)(C). MOREOVER, THERE HAD BEEN NON DISCLOSURE OF MATERIAL FACTS IN THIS CASE AS DI SCUSSED ABOVE. ALSO AFTER INSERTION OF CLAUSE OF (IB) OF SECTION 271 W.E.F. 01.04.1989, SA TISFACTION NEED NOT BE EXPRESSLY RECORDED BEFORE INITIATION OF PENALTY PROCEEDINGS. BESIDES, THE A.O. HAS HELD THAT THE APPELLANT HAS FILED INACCURATE PARTICULARS OF INCOM E. THEN HE HAS INVOKED EXPLANATION 1 TO SECTION 271 OF IT. ACT, 1961 BY VIRTUE OF WHICH THE ADDITIONS MADE ARE DEEMED TO BE AMOUNT IN RESPECT OF WHICH PARTICULARS HAVE BEEN CO NCEALED. 4. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), AS SESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUND:- 1. LD. CIT (A) ERRED IN LAW AND ON FACTS IN CONFIRMING PENALTY LEVIED U/S 271(L)(C) OF RS. 83, 914- ON CONVERSION OF BUSINESS LOSS INTO CAPITA L LOSS AND IN ADOPTION OF HIGHER RATE FOR SHARES SOLD. BOTH THE LOWER AUTHORITIES FA ILED TO APPRECIATE THE FACT THAT THE ITA NO 258/A HD/2012 . A.Y. 2004-0 5 4 APPELLANT NEITHER FURNISHED INACCURATE PARTICULARS NOR CONCEALED ANY INCOME AND SIMPLY BECAUSE A DIFFERENT VIEW WAS ADOPTED FOR MAK ING THE ADDITIONS, PENALTY WAS LEVIABLE ON ADDITIONS SUSTAINED. THE PENALTY LEVIED BEING WITHOUT ANY MERITS AND JUSTIFICATION DESERVES TO BE QUASHED. 5. BEFORE US, LD. A.R. REITERATED THE SUBMISSIONS MADE BEFORE A.O AND LD. CIT(A) AND FURTHER SUBMITTED THAT IN AN IDENTICAL C ASE, WHERE IN CASE OF ANOTHER ASSESSEE (OMNI FINSTOCK PVT. LTD.) THE SIMI LAR ISSUE, SALE OF SIMILAR SCRIPS WERE INVOLVED AND WHERE THE LD. CIT(A) IN EX ACTLY SIMILAR WORDS HAD UPHELD THE LEVY OF PENALTY AND IN APPEAL BEFORE TRI BUNAL THE PENALTY WAS DELETED. SHE PLACED ON RECORD THE COPY OF THE DECIS ION OF TRIBUNAL AND POINTED TO THE FINDINGS OF THE HONBLE TRIBUNAL. SH E THEREFORE SUBMITTED THAT SINCE THE ISSUE IN THE PRESENT CASE IS COVERED IN F AVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE TRIBUNAL IN THE CASE OF OMNI FI NSTOCK PVT. LTD. ITA NO. 1251/A/2012 ORDER DATED 24.09.2012, THE PENALTY BE DELETED. THE LD. D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF THE A.O AND L D. CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO LEVY O F PENALTY U/S. 271(1)(C) ON THE LOSS ON SALE OF SHARES OF MARKET CREATORS LTD. THAT WAS CLAIMED BY THE ASSESSEE. WE FIND THAT IN THE CASE OF OMNI FINSTOCK PVT. LTD. (SUPRA) IDENTICAL ISSUE WAS INVOLVED. WE FIND THAT THE PENA LTY LEVIED U/S. 271(1)(C) IN THE CASE OF OMNI FINSTOCK PVT. LTD. (SUPRA) WAS DELETED, THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE BY THE CO-ORDINAT E BENCH OF TRIBUNAL BY HOLDING AS UNDER:- 8.WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL ON RECORD. AS REFERRED TO BY THE LEARNED AR, ITAT AHMEDABAD 'B' BENCH IN ITA NO.3432/AHD/2010 FOR AY 2004- 05 IN THE CASE OF ERGON INVESTMENTS & FINANCE (P) L TD. DATED 31-10-2011 HAS DECIDED ITA NO 258/A HD/2012 . A.Y. 2004-0 5 5 SAME ISSUE(I.E., COMPUTATION OF CAPITAL GAIN ON THE SALE OF SHARES O F 'MARKET CREATORS LTD.', ON THE BASIS OF ACTUAL CONSIDERATION RECEIVE D AND NOT ON THE BASIS OF ALLEGED MARKET VALUE), IN FAVOUR OF THE ASSESSEE RELYING ON THE DECISION O F THE CASE OF ALLURE INVESTMENTS & FINANCE (P) LTD. FOR AY 2004-05 IN IT A NO.3431 /AND/2010 DATED 5.08.2011 WHEREIN IT WAS HELD AS UNDER: 7.WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGMENTS CITED BY BOTH THE SIDES. WE FIND THAT AS PER SECTION 48, CAPITAL GAIN HAS TO BE WORKED OUT AFTER REDUCING THE COST OF ACQUISITION OF CAPITAL ASSET ALONG WITH COST OF IMPROVEMENT THERETO AND THE EXPENSES INCURRED ON TRANSFER OF A CAPITAL ASSET FR OM FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER OF THE CAPITAL ASSET. THERE IS NO REFERENCE TO THE MARKET VALUE OF THE CAPITAL ASSET TRANSFERRE D IN SECTION 48 OR IN ANY OTHER SECTION EXCEPT SECTION 50C, WHICH IS APPLICABLE ONLY IN CAS E OF SALE OF LANDED PROPERTY. IN THE CASE OF JUDGMENT OF HON'BLE GUJARAT HIGH COURT REND ERED IN THE CASE OF CIT VS. SHRI GIRISH DAMJIBHAI PATEL (SUPRA), HON'BLE GUJARAT HIG H COURT HAS ALSO REFERRED TO THE SAME PROVISIONS OF SECTION 48 AND ON THE BASIS OF S AME SECTION 48 OF THE ACT, IT WAS HELD THAT SINCE SECTION 48 OF THE ACT DOES NOT HAVE ANY REFERENCE TO THE MARKET VALUE BUT ONLY TO THE CONSIDERATION REFERRED TO IN THE SALE DEED, THERE IS NO ERROR IN THE ULTIMATE CONCLUSION ARRIVED AT BY THE C1T(A) AS WELL AS BY T HE TRIBUNAL IN THAT CASE. HENCE, RATIO OF THIS DECISION OF HON'BLE GUJARAT HIGH COURT IS T HIS THAT FOR THE PURPOSE OF WORKING OUT CAPITAL GAIN, THE SALE CONSIDERATION RECEIVED BY TH E ASSESSEE OR ACCRUED SALE CONSIDERATION HAS TO BE ADOPTED BECAUSE THERE IS NO REFERENCE IN SECTION 48 TO THE VALUE OF THE ASSET FOR THE PURPOSE OF COMPUTING THE CAPIT AL GAIN., REGARDING THIS CONTENTION THAT THE ASSET IN THE PRESENT CASE IS QUOTED QUOTED AND NOT LANDED PROPERTY AS IN THE CASE OF DECISION OF BOMBAY COURT OR SHARES OF PRIVATE LTD. CO., AS IN THE CASE OF IT AT ORDER SUPRA, WE ARE OF THE CONSIDERED OPINION THAT IT DOE S NOT HAVE ANY ON THE RATIO OF THE JUDGMENT AND THE LEGAL POSITION. LEGAL POSITION REM AINS THE SAME IRRESPECTIVE OF THE TYPE OF CAPITAL ASSET AND WE DO NOT FIND ANY MERIT IN TH IS CONTENTION OF THE LD. D.R. OF THE REVENUE THAT THIS JUDGMENT OF HON'BLE GUJARAT HIGH COURT IS NOT ABLE IN THIS CASE BECAUSE ASSETS IN THAT WAS LANDED PROPERTY WHEREAS IN PRESENT CASE, IT IS QUOTED SHARE. AS PER THE RATIO LAID DOWN BY HON'BLE GUJARAT HIGH COU RT, CAPITAL GAIN HAS TO BE COMPUTED ITA NO 258/A HD/2012 . A.Y. 2004-0 5 6 ON THE BASIS OF CONSIDERATION ACCRUING OR RECEIVED FOR TRANSFER OF CAPITAL ASSET AND FOR THAT PURPOSE, NO REFERENCE IS REQUIRED TO BE MADE T O THE MARKET VALUE OF THE ASSET IN QUESTION BECAUSE THERE IS NO PROVISION IN SECTION 4 8 OF THE ACT. IN THAT JUDGMENT, REFERENCE HAS BEEN MADE TO SECTION 45(2) ALSO WHERE IT IS SPECIFIED THAT MARKET VALUE OF THE ASSET IN QUESTION HAS TO BE CONSIDERED WHERE TH ERE IS CONVERSIONBY THE OWNER OF THE CAPITAL ASSET INTO STOCK IN TRADE BUT IT WAS HELD T HAT PROVISION OF SECTION 45(2) ARE NOT APPLICABLE IN THE CASE OF SALE OF CAPITAL ASSET AND THE SAME IS APPLICABLE WHERE THERE IS CONVERSION OF CAPITAL ASSET INTO STOCK IN TRADE. IT WAS NOTED BY HON'BLE GUJARAT HIGH COURT IN PARAGRAPH 19 THAT COUNSEL FOR THE REVENUE WAS UNABLE TO POINT OUT ANY OTHER PROVISION IN WHICH IN A SITUATION LIKE THE PRESENT CASE, THE ASSESSING OFFICER COULD HAVE MADE A REFERENCE TO A VALUER FOR ASCERTAINING THE F AIR MARKET VALUE OF THE ASSETS IN QUESTION AS ON THE DATE OF ITS TRANSFER IN THE PRES ENT CASE ALSO, NO PROVISION IN THE INCOME TAX ACT HAS BEEN BROUGHT TO OUR NOTICE AS PER WHICH , MARKET VALUE CAN BE CONSIDERED FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN. REGARDI NG THE RELIANCE PLACED BY LD. D.R. OF THE REVENUE ON THE JUDGMENT OF HON'BLE APEX COURT R ENDERED IN THE CASE OF MCDOWELL & CO. LTD. VS. C.T.O. (SUPRA), WE FIND THAT IN THAT C ASE, THE ISSUE INVOLVED WAS REGARDING LEGAL TAX PLANNING OR TAX AVOIDANCE. IN THE PRESENT CASE, WE FIND THAT EVEN AFTER ADDITION MADE BY THE A. O. RS.4,19,504/-, THE LOSS ASSESSED BY THE A. O. IS OF RS.28,23,396/-. THE FACTS OF THE PRESENT CASE DO NOT INDICATE THAT THER E WAS ANY CASE OF WILLFUL TAX AVOIDANCE OR TAX EVASION. HENCE, IN OUR CONSIDERED OPINION, T HE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF MCDOWELL & CO. LTD. VS. C. T. O. (SUPRA) HAS NO RELEVANCE IN THE PRESENT CASE BECAUSE WE FIND THAT IN THE PRESENT CA SE, THE REASONS ARE ALSO GIVEN FOR ADOPTING LOWER PRICE OF RS.0.26 PER SHARE AS AGAINS T THE QUOTATION AT BOMBAY STOCK EXCHANGE OF RS. 1.52 PER SHARE. IT IS SUBMITTED THA T THE ASSESSEE COMPANY HAS SOLD THE SHARES IN PHYSICAL FORM TO THE RELATED PARTY WHEREA S THE SHARES TRADED AT BOMBAY STOCK EXCHANGE WERE DEMAT SHARES AND IF THE ASSESSEE WANT S TO SALE THE SHARES AT A STOCK EXCHANGE, IT HAS GOT THE SHARES DEMATERIALIZED WHIC H WILL REQUIRE TIME AND WILL ALSO HAVE ITS COST AND MOREOVER, THE QUANTITY OF SHARES TRADE D IN THE STOCK EXCHANGE IN VARIOUS MONTHS OF THE FINANCIAL YEAR AT VARIOUS DATES IN TH E MONTH OF MARCH,2004 OR IN FEBRUARY,2004 WAS 100 SHARES ON SOME DATES, 200 SHA RES ON SOME DATES, 300 SHARES ON SOME DATES AND 1100 SHARES ON ONE DATE ONLY WHEREAS THE QUANTITY OF SHARES SOLD BY THE ITA NO 258/A HD/2012 . A.Y. 2004-0 5 7 ASSESSEE IS 3,32,940 SHARES. IT WAS SUBMITTED THAT IT CANNOT BE SAID THAT THE PRICE CHARGED BY THE ASSESSEE WAS UNREASONABLY HE FACTS OF THE PR ESENT CASE. 8.CONSIDERING THE FACTS OF THE PRESENT CASE IN ITS ENTIRETY AS DISCUSSED ABOVE BY RESPECTFULLY FOLLOWING THE JUDGMENT OF THE HON'BLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. GIRISH DAMJIBHAI PATEL (SUPRA), WE ARE OF THE CONSIDERED OPINION THAT FOR THE COMPUTATION OF CAPITAL GAIN IN THE PRESENT CASE , THE A.O. SHALL WORK OUT THE CAPITAL GAIN/CAPITAL LOSS ON THE BASIS OF CONSIDERATION REC EIVED BY THE ASSESSEE AND NOT ON THE BASIS OF ALLEGED MARKET VALUE OF THE SHARES SOLD BY THE ASSESSEE. WE DIRECT THE A.O. ACCORDINGLY.' ADMITTEDLY, THE FACTS OF THE ASSESSEE'S CASE ARE ID ENTICAL BECAUSE THE ASSESSEE HAS SOLD THE SHARES OF THE SAME COMPANY ON THE SAME DATE AND AT THE SAME PRICE. FOLLOWING THE ABOVE ORDER OF THE TRIBUNAL, WE ARE OF THE VIEW THAT FOR COMPUTATION OF CAPITAL GAIN IN THE PRESENT CASE, THE AO SHALL WORK OUT THE CAPITAL GAI N/CAPITAL LOSS ON THE BASIS OF CONSIDERATION RECEIVED BY THE ASSESSEE. WE DIRECT T HE AO ACCORDINGLY. 8.IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED. 9. CONSIDERING THE FACTS OF THE CASE AND THE ABOVE DISCUSSIONS, THOUGH THE ASSESSEE HAS NOT PREFERRED ANY QUANTUM APPEAL, WE DO NOT FIND IT APPROPRIATE TO LEVY OF PENALTY BECAUSE, ON IDENTICAL FACTS OF COMPUTATION OF CAPITAL GAIN ON THE SALE OF SHARES O F 'MARKET CREATORS LTD.', ON THE BASIS OF ACTUAL CONS IDERATION RECEIVED IE., @ RS. 0.26 PER SHARE AND NOT ON THE BASIS OF ALLEGED MARKET VA LUE, IT HAS BEEN DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE ON AN EARLIER OC CASION IN ANOTHER ASSESSEES CASE MENTIONED SUPRA. ACCORDINGLY, WE SET ASIDE THE ORDE R OF THE LD. CIT(A) AND DELETE THE PENALTY. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. 7. BEFORE US, REVENUE HAS NOT PLACED ANY MATERIAL ON R ECORD TO DEMONSTRATE THAT THE FACTS OF THE CASE ARE DISTINGUISHABLE WITH THAT OF OMNI FINSTOCK PVT. LTD (SUPRA) WHICH HAS BEEN DECIDED IN FAVOUR OF ASS ESSEE. WE THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDIN ATE BENCH OF TRIBUNAL IN THE CASE OF OMNI FINSTOCK (SUPRA) ARE OF THE VIEW T HAT THAT NO PENALTY IS ITA NO 258/A HD/2012 . A.Y. 2004-0 5 8 LEVIABLE IN THE PRESENT CASE. WE ACCORDINGLY DELET E THE PENALTY. IN THE RESULT, THE GROUND OF ASSESSEE IS ALLOWED. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 13 - 08 - 2015 . SD/- SD/- (RAJPAL YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHM EDABAD