ITO, New Delhi V. M/s Sarika Minda Family Trust, New Delhi

ITA 2644/DEL/2011

• Counselvise Citation: 264420114 RSA 2011
• Duration Of Justice: 3 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 03-02-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 23-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Principle of natural justice; Additional evidence; Fair market value
• Section: 142(1); 144

Judgement Text

ITA NO. 2644/ DEL/ 2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A.NO. 2644 /DEL/201 1 A.Y. : 200 7 - 08 INCOME TAX OFFICER, WARD 19(2), ROOM NO. 216, D - BLOCK, VIKAS BHAVAN, IP ESTATES, NEW DELHI 110 002 VS. M/S SARIKA MINDA FAMILY TRUST, A - 15, ASHOK VIHAR, PHASE - I, DELHI 110052 (PAN: - AADTS1304E) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. B.R.R. KUMAR, SR. DR ASSESSEE BY : SH. ASHWANI TANEJA, ADVOCATE DATE OF HEARING : 11 - 0 2 - 201 5 DATE OF ORDER : 1 7 - 0 2 - 201 5 ORDER PER H.S. SIDHU : J M THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 21 / 2 /20 1 1 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - XX II , NEW DELHI ON THE FOLLOWING GROUNDS: - 1. THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE 'IN ALLOWING THE RELIEF OF RS.36,09,025/ - OUT OF SHORT TERM CAPITAL GAINS ON SALE OF 17500 SHARES MINDA HUF LTD. ON THE GROUND THAT THE DIFFERENCE CANNOT BE BROUGHT TO TAX UNLESS. THERE IS DOCUMENTARY EVIDENCE THAT THERE HAS BEEN UNDERSTATEMENT OF CONSIDERATION. ITA NO. 2644/ DEL/ 2011 2 (SALE PRICE @ RS. 1 05/ - PER SHARE SHOWN BY THE ASSESSEE AS AGREED BETWEEN THE PARTIES WITHOUT ANY BASIS) A ND. (SALE PRICE TAKEN ON FAIR VALUE OF SHARES COMPUTED BY THE AO @ RS.311.23 PER SHARE) 2. THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN ALLOWING THE RELIEF OF RS.56,26,156/ - OUT OF SALE CONSIDERATION TAKEN BY AO AT RS.73,1 2,946/ - BEING FAIR VALUE OF 23,597 SHARES OF MINDA HUF LTD. AGAINST THE SALE CONSIDERATION OF RS.16,86,790/ - SHOWN BY THE ASSESSEE ON THE GROUND THAT THE DIFFERENCE CANNOT BE BROUGHT TO TAX UNLESS THERE IS DOCUMENTARY EVIDENCE THAT THERE HAS BEEN UNDERST ATEMENT OF CONSIDERATION. (SALE PRICE @ RS.71.48/ - PER SHARE SHOWN BY THE ASSESSEE AS AGREED BETWEEN THE PARTIES WITHOUT ANY BASIS) AND (SALE PRICE TAKEN ON FAIR VALUE OF SHARES BY THE AO @RS.309.91 PER SHARE) 3. THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE WITHOUT APPRECIATING THE FACTS OF THE CASE PROPERLY IN DIRECTING TO ACCEPT THE PURCHASE PRICE OF 60,365 SHARES OF MINDA HUF LTD. (A RESIDENT COMPANY) FROM MLS. HULSBECK & FURST GMBH & CO. KH (A NON - RESIDENT COMPANY) AS S HOWN BY THE ASSESSEE AT RS.176.29 PER SHARE AS ITA NO. 2644/ DEL/ 2011 3 AGAINST RS.269.03 PER SHARE WORKED OUT AS PER GUIDELINES OF THE R.B.I. VIDE C IRCULAR NO.16 DATED 04.10.2004 . 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ALL OR ANY OF THE AFORESAID GROUNDS OF APPEAL AND AMEND, ALTER OR ADD ANY OTHER GROUND OF APPEAL.' 2. THE FACTS IN BRIEF ARE THAT T HE ASSESSEE FILED ITS RETURN OF INCOME ON 28.9.2007 WHICH WAS PROCESSED U/S. 143(1) OF THE I.T. ACT ON 28.1.2009 AT THE RETURNED AMOUNT. LATER THE CASE WAS SELECTED FOR SCRUTINY AS PER THE GUIDELINES OF THE CBDT AND THE AO ISSUED NOTICE U/S. 143(2) OF THE I.T. ACT, 1961 DATED 26.9.2008 FIXING THE HEARING ON 3.10.2008. AO ALSO ISSUED NOTICES U/S. 142(1) ALONGWITH THE DETAILED QUESTIONNAIRE DATED 29.9.2008 FIXING THE CASE OF THE ASSESSEE FOR 17.10.2008. SH. RN SARAF, CA ATTENDED AND SEEK ADJOURNMENT FOR 14.11.2008 FOR FILING THE REQUISITE DETAILS, BUT ON THE DATE FIXED, NEITHER THE ASSESSEE NOR HIS AUTHORISED REPRESENTATIVE APPEARED AND THE AO FIXED THE DATE OF HEARING F OR 24.2.2009. 2.1 AO FOUND THAT THE NUMBER OF TRANSACTION IN SHARES SHOWING LONG TERM CAPITAL GAIN OF RS. 12,66,696/ - AND SHORT TERM CAPITAL LOSS OF RS. 12,64,168/ - AND AFTER SETTING OFF THE SAME, A NET CAPITAL GAIN OF RS. 2528/ - WAS SHOWN IN THE RETURN OF INCOME. AO ISSUED ANOTHER NOTICE U/S. 143(2) DATED 26.6.2009 FIXING THE CASE FOR 15.7.2009. AGAIN SH. RN SARAFT, CA/AR ATTENDED AND FILED THE NECESSARY DETAILS. FOR FURTHER DETAILS AND EXPLANATION, THE AO ADJOURNED THE CASE FOR SEVERAL TIMES AND ASS ESSEE S COUNSEL HAS ALSO FILED CERTAIN DETAILS. BUT LASTLY THE CASE OF THE ASSESSEE WAS FIXED FOR HEARING ON 29.1 2 .2009 AND ON THAT DATE A TELEPHONIC ITA NO. 2644/ DEL/ 2011 4 MESSAGE WAS RECEIVED FROM THE COUNSEL S OFFICE THAT MR. SARAF WOULD BE COMING IN THIS OFFICE ON 30.12.200 9 AND REQUESTED FOR ADJOURNMENT. BUT NOBODY ATTENDED THE HEARING AND NOR FILED ANY WRITTEN SUBMISSIONS ON THAT DATE AND LASTLY THE AO ON THE BASIS OF THE DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE COMPLETED THE ASSESSMENT BY MAKING VARIOUS ADDITIONS VID E ORDER DATED 31.12.2009 PASSED U/S. 144 OF THE I.T. ACT. 3. AGGRIEVED WITH THE ABOVE ORDER, ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 21.2.2011 PARTLY ALLOWED THE APPEAL FILED BY THE ASSESSEE. 4 . NOW THE REVENUE IS AGGRIEVED AGAINST THE IMPUGNED ORDER AND FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 5 . AT THE TIME OF HEARING LD. DR RELIED UPON THE ORDER OF THE AO AND REITERATED THE CONTENTIONS RAISED BY THE REVENUE IN THE GROUNDS OF APPEAL, ESPECIALLY THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER BY STATING THAT THE ASSESSEE REMAIN NON - COOPERATIVE BEFORE THE AO AS WELL AS BEFORE THE LD. CIT(A), THEREFORE, THE ASSESSEE HAS NOT DESERVE FOR ANY LENIENCY FROM THIS BENCH AND ACCORDINGL Y, LD. DR HAS REQUESTED THAT THE IMPUGNED ORDER MAY BE CANCELLED AND THE AO S ORDER MAY BE UPHELD. 6 . ON THE CONTRARY, DURING THE HEARING, LD. COUNSEL OF THE ASSESSEE DRAW OUR ATTENTION TOWARDS THE IMPUGNED ORDER AND STATED THAT THE ISSUE IN DISPUTE HAS ALREADY BEEN ADJUDICATED BY THE HON BLE JURISDICTIONAL HIGH COURT IN VARIOUS CASES AND DECIDED THE ISSUE IN FAVOR OF THE ASSESSEE. HE ALSO DRAW OUR ATTENTION TOWARD THE IMPUGNED ORDER AGAIN WITH REGARD TO THE RELEVANT PART OF THE CIT S ORDER WHERE HE HAS FOLLOWED THE HON BLE SUPREME COURT DECISION AS WELL AS HON BLE JURISDICTIONAL HIGH COURT DECISION. TO SUPPORT THE IMPUGNED ORDER HE ALSO FILED THE PAPER BOOK CONTAINING ITA NO. 2644/ DEL/ 2011 5 PAGES 1 TO 128 IN WHICH HE HAS ATTACHED THE VARIOUS DOCUMENTARY EVIDENCE ALONGWITH THE JUDGMENT OF HON BLE SUPREME COURT AS WELL AS HON BLE JURISDICTIONAL HIGH COURT AND HE REQUESTED THAT THE APPEAL FILED BY THE REVENUE MAY BE DISMISSED. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDER PASSED BY THE REVENUE AUTHORITY ALONGWITH THE DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE IN THE SHAPE OF PAPER BOOK AS WELL AS THE CASE LAWS REFERRED BY HIM. WE ARE OF THE VIEW THAT THE ISSUES IN DISPUTE HA VE BEEN DISCUSSED IN DETAIL BY THE LD. CIT(A) IN THE IMPUGNED ORDER AND LASTLY HE ALSO ADMITTED THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE UNDER RULE 46A, AFTER GIVING OPPORTUNITY TO THE AO. THE RELEVANT PORTION OF THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AT PAGES 14 TO 16 VIDE P ARA NO. 7 TO 7.2. FOR THE SAKE OF CONVENIENCE THE AFORESAID RELEVANT PARAS ARE REPRODUCED AS UNDER: - 7. I HAVE CAREFULLY CONSIDERED THE VARIOUS SUBMISSIONS OF THE APPELLANT AND THE REMAND REPORTS OF THE ASSESSING OFFICER. REGARDING ADMISSION OF ADDITI ONAL EVIDENCES, IT IS FOUND THAT THOUGH THE ASSESSMENT WAS IN PROCESS FOR A NUMBER OF MONTHS, THE DETAILED QUESTIONNAIRE AND SHOW CAUSE NOTICE PROPOSING TO ADOPT THE VALUE OF THE SHARES AS PER NA V / EPS METHOD WAS ISSUED ON 22 - 12 - 2009 AND RECEIVED BY THE APPELLANT ON 26 - 12 - 2009. AS THE PROCEEDINGS WERE TIME BARRING ON 31 - 12 - 2009, IT IS CONSIDERED THAT SUFFICIENT AND REASONABLE OPPORTUNITY WAS NOT PROVIDED TO THE APPELLANT. MOREOVER, THE ADDITIONAL EVI DENCES ARE NECESSARY TO ADJUDICATE THE APPEAL IN AN EFFECTIVE MANNER. THE ADDITIONAL EVIDENCES ARE THEREFORE ADMITTED UNDER RULE 46A. ITA NO. 2644/ DEL/ 2011 6 7.1 AT GROUND NO. 1, THE APPELLANT HAS OBJECTED TO THE FRAMING OF ASSESSMENT U / S 144 AND ARGUED THAT THE SAME IS BAD IN L AW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. IN VIEW OF MY FINDINGS GIVEN ABOVE TO ADMIT THE ADDITIONAL EVIDENCES FILED AND SINCE THE PAPER - BOOK AND SUBMISSION MADE ON BEHALF OF THE APPELLANT HAVE BEEN SENT TO THE ASSESSING OFFICER FOR CONSIDERATION, I FIND THAT NO INJUSTICE IS CAUSED TO THE APPELLANT. GROUND NO. 1 ACCORDINGLY NEEDS NO FURTHER ADJUDICATION. 7.2 GROUND NO. 2 AND 3 OF THE APPEAL RELATE TO THE ASSESSMENT OF INCOME FROM SHORT TERM CAPITAL GAINS AND LONG TERM CAPITAL GAINS ON SALE OF EQUIT Y SHARES OF M / S MINDA HUF LTD. AS AGAINST THE LONG TERM CAPITAL GAINS DISCLOSED OF RS. 12,66,696/ - ON SALE OF 23597 SHARES, AND SUBSEQUENTLY REVISED TO RS. 13,15,712/ - , THE ASSESSING OFFICER HAS ASSESSED THE LONG TERM CAPITAL GAINS AT RS. 57,79,566/ - AND A S PER THE REMAND REPORT DTD 25 - 01 - 2011 HAS SUBMITTED THAT THE LONG TERM CAPITAL GAINS REQUIRED TO BE ASSESSED AT RS. 69,41,868/ - . SHORT TERM CAPITAL LOSS ON SALE OF 17500 SHARES HAS BEEN DISCLOSED BY THE APPELLANT AT RS. 12,64,168/ - , WHICH HAS BEEN ASSESSE D AS SHORT TERM CAPITAL GAINS AT RS. 23,21,757/ - . THE ASSESSING OFFICER HAS SUBMITTED THAT THE SHORT TERM CAPITAL GAINS CORRECTLY WORK OUT TO RS. 23,44,857/ - . THE ASSESSING OFFICER WAS ALSO OF THE VIEW THAT THE PRICE PAID BY THE APPELLANT FOR PURCHASE OF T HE SHARES ON 17 - 10 - 2006 FROM M / S HULSBECK & FURST GMBH & CO. (NON - RESIDENT COMPANY) WAS UNDERSTATED. THE APPELLANT PURCHASED THE SHARES OF M / S MIN DA AT RS. 176.29 PER SHARE AND HAS EXPLAINED THAT THIS WAS TH E PRICE AGREED ON BETWEEN THE ITA NO. 2644/ DEL/ 2011 7 ERSTWHILE MEMBERS O F THE JV. MLS HULSBECK & FURST GMBH & CO. WERE THE JV PARTNER OF MLS MINDA HUF LTD. IN ORDER TO AVOID OTHER PERSONS FROM GAINING CONTROL OF THE BUSINESS AND CREATING DIFFICULTIES, THE GROUP CONCERNS OF M / S MINDA HUF LTD. PURCHASED THE SHARES OF THE COMPANY AS PER THE AGREEMENT ENTERED BETWEEN BOTH PARTIES. M / S MINDA HUF LTD. BECAME M / S MINDA CORPORATION LTD. AND WITH THE LOSS OF BRAND NAME OF 'HUF' AFTER THE SAID AGREEMENT, THE PRICE OF THE SHARES FELL. THE APPELLANT HAD RAISED A LOAN FOR PURCHASE OF THE SH ARES FROM THE JV PARTNER, AND IN ORDER TO REPAY THE LOAN THE APPELLANT SOLD ITS SHARES AT THE BEST PRICE AVAILABLE. IT IS ALSO SUBMITTED THAT THE APPELLANT HAS NO CONNECTION WITH BHAG W AT SEWA TRUST OR RAGHAV AUTO ENGINEERING PVT. LTD. TO WHOM THE SHARES WE RE SOLD. THE APPELLANT HAS ALSO SHOWN THAT THE SHARES SOLD BY THEM HAVE BEEN SENT TO THE REGISTRAR, SKYLINE FINANCIAL SERVICES P. LTD., BY THE PURCHASERS OF THE SHARES. THE TRANSACTION OF 261897 SHARES ON 25 - 09 - 2007 AS PER THE CERTIFICATE OF THE REGISTRAR INCLUDES THE SHARES TRANSACTED BY THE APPELLANT. IT IS FURTHER SUBMITTED THAT AS PER TERMINATION OF THE JOINT VENTURE AGREEMENT, THE ENTIRE SHARE HOLDING OF 906800 SHARES IN M / S MINDA HUF LTD. HELD BY THE FOREIGN PROMOTER WAS PURCHASED BY THE INDIAN PROMO TER THROUGH ITS ASSOCIATES. OUT OF 906800 EQUITY SHARES SOLD BY THE FOREIGN PROMOTER, THE APPELLANT HAD PURCHASED 60365 WHICH WORKS OUT TO LESS THAN 7% OF THE TOTAL TRANSACTION. IT IS SUBMITTED THAT NO ADDITIONS OR DISALLOWANCES HAVE BEEN MADE IN THE CASE OF THE OTHER PARTIES WHO PURCHASED THE SHARES OF M / S MINDA HUF LTD. THE MAIN ISSUE INVOLVED IS WHETHER THE ASSESSING OFFICER COULD HAVE VALIDLY ITA NO. 2644/ DEL/ 2011 8 DETERMINED THE FULL VALUE OF THE CONSIDERATION FOR TRANSFER ON THE BASIS OF VALUATION OF SHARES ON NA V IEPS MET HOD. IT IS SETTLED LAW THAT THE ONUS IS ON THE REVENUE TO PROVE THAT THE APPELLANT HAS UNDERSTATED ITS INCOME. IN THE LAND - MARK JUDGMENT OF CIT V. K.P. VARGHESE, THE SUPREME COURT HAS HELD THAT IT IS FOR THE REVENUE TO SHOW THAT THE CONSIDERATION ACTUALLY RECEIVED BY THE ASSESSEE IS MORE THAN WHAT IS DECLARED OR DISCLOSED BY HIM. 'THIS BURDEN MAY BE DISCHARGED BY THE REVENUE BY ESTABLISHING FACTS AND CIRCUMSTANCES FROM WHICH A REASONABLE INFERENCE CAN BE DRAWN THAT THE ASSESSEE HAS NOT CORRECTLY DECLARED OR DISCLOSED THE CONSIDERATION RECEIVED BY HIM AND THERE IS AN UNDERSTATEMENT OR CONCEALMENT OF THE CONSIDERATION IN RESPECT OF THE TRANSFER.' IT WAS HELD THAT IT WAS NOT SUFFICIENT TO PROVE THAT THE ACTUAL CONSIDERATION DECLARED WAS LESS THAN THE FAIR MARKE T VALUE OF THE ASSET; THAT IT WAS FURTHER NECESSARY THAT IT MUST BE SHOWN THAT THE CONSIDERATION WAS NOT FULLY DISCLOSED. I FIND THAT THERE IS NO EVI DENCE GATHERED BY THE ASSESSING OFFICER TO P ROVE THAT UNDISCLOSED CONSIDERATION HANDS. THERE IS NO PROVIS ION IN THE ACT TO SUBSTITUTE FAIR MARKET VALUE IN PLACE OF THE SALE CONSIDERATION. AS OPINED BY THE APEX COURT IN THE CASE OF CIT V. SIVAKAMI CO. P. LTD. 159 ITR 71, CAPITAL GAINS TAX WAS INTENDED TO TAX THE GAINS OF AN ASSESSEE, NOT WHAT AN ASSESSEE MIGH T HAVE GAINED. WHAT IS NOT GAINED CANNOT BE COMPUTED AS GAINED. ALL LAWS, FISCAL OR OTHERWISE, MUST BE BOTH REASONABLY AND JUSTLY INTERPRETED WHENEVER POSSIBLE. CAPITAL GAINS TAX IS NOT A TAX ON WHAT MIGHT HAVE BEEN RECEIVED OR COULD HAVE BEEN TAXED. IN TH IS CASE, THE REVENUE HAS MADE NO ATTEMPT TO ESTABLISH THAT THERE WAS ANY UNDERSTATEMENT ITA NO. 2644/ DEL/ 2011 9 THOUGH IT MIGHT BE THAT SHARES WERE SOLD AT AN UNDER VALUE.' IN THIS VIEW OF THE MATTER, IT IS SEEN THAT THERE IS NO EVIDENCE, DIRECT OR INFERENTIAL, THAT THE FULL CON SIDERATION HAS NOT BEEN DISCLOSED BY THE APPELLANT. IN SUPPORT OF THE PURCHASE PRICE OF THE SHARES, THE APPELLANT HAS FILED THE COPY OF THE TERMINATION AGREEMENT OF THE JOINT VENTURE MENTIONING THEREIN THE RATES OF THE SHARES AGREED BETWEEN THE PARTIES, TH E COPY OF THE SHARE TRANSFER FORM FOR THE TRANSFER OF SHARES FROM THE JV PARTNER TO THE APPELLANT AND THE PROOF OF REMITTANCE THROUGH BANK ACCOUNT. REGARDING THE SHARES SOLD BY THE APPELLANT, THE APPELLANT HAS SUBMITTED COPY OF THE SALE BILLS, CONFIRMATION S FROM THE PARTIES, COPY OF BANK ACCOUNT OF THE PARTIES AND COPY OF SHARE TRANSFER FORMS. ON THE OTHER HAND, THE ASSESSING OFFICER HAS NOT BEEN ABLE TO CONTROVERT THESE EVIDENCES AND HAS BROUGHT NO EVIDENCE ON RECORD THAT THE APPELLANT HAD RECEIVED SOME PR ICE FOR THESE SHARES OTHER THAN WHAT WAS DECLARED. ASSESSMENT CANNOT BE MADE ON SURMISES, CONJECTURES AND PREMISES. EVEN IF FOR THE SAKE OF ARGUMENT, IT IS ACCEPTED THAT THE MARKET PRICE OF THE ASSET WAS DIFFERENT FROM THE SALE CONSIDERATION, THE DIFFERENC E CANNOT BE BROUGHT TO TAX ITA NO. 2644/ DEL/ 2011 10 UNLESS THERE IS DOCUMENTARY EVIDENCE THAT THERE HAS BEEN UNDERSTATEMENT OF CONSIDERATION. CONSIDERING. THE JUDGMENTS OF THE SUPREME COURT AND JURISDICTIONAL HIGH COURT, THE ASSESSING OFFICER IS DIRECTED TO TAKE THE SALE CONSIDERA TION AS DECLARED BY THE APPELLANT FOR C OMPUTING THE CAPITAL GAINS/LOSS. GROUND OF APPEAL NO. 2 AND 3 ARE ALLOWED. 7 .1 KEEPING IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AS WELL AS THE DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE A LONGWITH THE VARIOUS DECISIONS CITED BY THE LD. COUNSEL OF THE ASSESSEE AND THE FINDING GIVEN BY THE LD. CIT(A) ON THE ISSUE IN DISPUTE, WE ARE OF THE VIEW THAT LD. CIT(A) DECIDED THE ISSUE IN DISPUTE BY RESPECTFULLY FOLLOWING THE ORDER OF THE HON BLE SUP REME COURT PASSED IN THE CASE OF CIT V. SIVAKAMI CO. P. LTD. 159 ITR 71 AND HAS RIGHTLY HELD THAT IN THE CASE OF THE ASSESSEE, THE REVENUE HAS MADE NO ATTEMPT TO ESTABLISH THAT THERE WAS ANY UNDERSTATEMENT THOUGH IT MIGHT BE THAT SHARES WERE SOLD AT AN UNDER VALUE. HE HAS ALSO HELD THAT EVEN IF FOR THE SAKE OF ARGUMENT, IT IS ACCEPTED THAT MARKET PRICE OF THE ASSESSEE WAS DIFFERENT FROM THE SALE CONSIDERATION, THE DIFFERENCE CANNOT BE BROUGHT TO TAX UNLESS THERE IS DOCUMENTARY EVIDENCE THAT THERE HAS BEEN UNDERSTATEMENT OF CONSIDERATION. IN THE ABSENCE OF ANY DOCUMENTARY EV IDENCE, THE LD. CIT(A) HAS DELETED THE ADDITION IN ITA NO. 2644/ DEL/ 2011 11 DISPUTE BY RESPECTFULLY FOLLOWING THE ORDER OF THE HON BLE SUPREME COURT AND AFTER CONSIDERING THE CASE LAW CITED BY THE LD. COUN S EL OF THE ASSESSEE. THEREFORE, IN OUR CONSIDERED VIEW, NO INTERFERENCE I S REQUIRED ON OUR PART IN THE ORDER OF THE LD. CIT(A), HENCE, WE UPHOLD THE ORDER OF THE LD. CIT(A) BY DISMISSING THE APPEAL FILED BY THE REVENUE. 8 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE O PEN C OURT ON 1 7 / 0 2 / 20 1 5 . SD / - S D / - [ J.S. REDDY] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 1 7 / 0 2 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES