ACIT, New Delhi V. Shri Sanjeev Mathur, Gurgaon

ITA 5560/DEL/2010

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0239 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-07-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 08-05-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 08-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J P CHANDRAKER
• Keywords: Rectification of order; Additional evidence
• Section: 143(3)

Judgement Text

ITA NO. 5560/ DEL/ 2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A. NO. 5560 /DEL/201 0 A.Y. : 200 4 - 0 5 ACIT, CIRCLE - 47(1), NEW DELHI 426, MAYUR BHAVAN, NEW DELHI VS. SH. SANJEEV MATHUR, C - 2 - 301, UNIWORLD CITI SOUTH CITY, SECTOR - 30, GURGAON (HARYANA) (PAN: AGBPM4921D) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. J.P. CHANDRAKER, SR. DR ASSESSEE BY : SH. R.S. SINGHVI, CA ORDER PER H.S. SIDHU : J M TH IS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) - XXX, NEW DELHI DATED 29 . 9 .201 0 P ERTAINING TO ASSESSMENT YEAR 200 4 - 0 5 ON THE FOLLOWING GROUNDS: - 'ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN: - (I) DIRECTING THE ASSESSING OFFICER (AO) TO ACCEPT THE CAPITAL GAIN ARISING FROM THE SALE OF SHARES ACQUIRED UNDER THE STOCK OPTION PLAN OF M / S MICROSOFT CORPORATION AS LONG TERM CAPITAL GAIN WITHOUT CONSIDERING THE DETAILED AND ELABORATE REASONING GIVEN BY THE AO AND THE JCIT IN TREATING THE SAID CAPITAL GAIN AS SHOR T TERM; (II) HOLDING THAT THE AO HAD NO FURTHER JURISDICTION TO DECIDE THE ISSUE AFRESH AND THAT THE ON LY DIRECTION FROM THE TRIBUNAL ITA NO. 5560/ DEL/ 2010 2 WAS FOR VERIFICATION OF DATES OF ACQUISITION OF BONUS SHARES WHICH IS WRONG ON FACTS (A) AS THE AO MADE THE ASSESSMENT U/S 143(3)/254 SOLELY AS PER THE DIRECTIONS GIVEN BY THE TRIBUNAL I.E. TO VERIFY THE CORRECTNESS OF THE DA TES OF ALLOTMENT OF SHARES AND TO PASS THE CONSEQUENTIAL ORDER, (B) DATE OF ALLOTMENT IS NOT THE SAME AS THAT OF DATE OF VESTING: (III) ERRED IN HOLDING THAT ONLY GROUND BEFORE THE TRIBUNAL WAS IN RESPECT OF FURNISHING OF ADDITIONAL EVIDENCE WHEREAS THE MAIN GROUND OF APPEAL BEFORE THE HON'BLE ITAT, AS TAKEN BY THE DEPARTMENT, WAS AGAINST THE ORDER OF LD.CIT(A) HOLDING THE CAPITAL GAIN AS LONG TERM CAPITAL GAIN AND WITHIN THE SAME GROUND OF APPEAL, THE FACT OF ADMISSION OF ADDITIONAL EVIDENCE BY THE ID.C IT(A) HAD BEEN MENTIONED. THE APPELLANT CRAVES THE RIGHT TO ALTER, AMEND, ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 10.9.2004 ADMITTING INCOME OF RS.1,46,44,703/ - . THE R ETURN WAS PROCESSED AND SUBSEQUENTLY SELECTED FOR SCRUTINY ASSESSMENT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTICED THAT THE ASSESSEE HAS SOLD SHARES PURCHASED IN STOCK OPTION PLAN . ON EXAMINATION OF THE DETAILS FILED BY THE ASSESSEEE, T HE AO CAME TO THE CONCLUSION THAT THE SAME WAS ASSESSABLE AS SHORT TERM CAPITAL GAIN AMOUNTING TO RS. 94,12,649/ - AGGRIEVED BY THE SAME, ASSESSEE APPEALED BEFORE THE CIT(A), WHO VIDE IMPUGNED ORDER DATED 17.5.2007 HAS HELD THAT THE ASSESSEE PLACED ON R ECORD ALL THE NECESSARY EVIDENCES IN THE FORM OF ORIGINAL AGREEMENT FOR ALLOTMENT OF STOCK OPTION AND ACCUMULATION OF THE SHARES THROUGH BONUS FROM TIME TO TIME. ALL THESE SHARES WERE HELD FOR MORE THAN ONE YEAR AND AS SUCH THE TRANSACTION IS TO BE TREATE D ITA NO. 5560/ DEL/ 2010 3 AS IN THE NATURE OF LONG TERM CAPITAL GAIN WHICH IS COVERED BY THE DELHI TRIBUNAL DECISION IN THE CASE OF ALOK KUMAR VS. JCIT 13 SOT 706. AGGRIEVED WITH THE AFORESAID ORDER, REVENUE FILED AN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL IN ITS FIRST ROUND VIDE ITA NO. 3557/DEL/2007 (AY 2004 - 05) [WRONGLY MENTIONED AS AY 2003 - 04 VIDE ORDER DATED 25.6.2008 HAS REMITTED THE CASE TO THE FILE OF THE AO FOR VERIFICATION OF DATES STATED BY THE ASSESSEE. THE TR I BUNAL ALSO OBSERVED THAT I F DATES OF ALLOTMENT OF SHARES ARE FOUND TO BE CORRECT, THE AO IS DIRECTED TO ACCEPT THE CLAIM OF THE ASSESSEE RELATING TO LONG TERM CAPITAL GAIN WITH THE DIRECTION TO PASS CONSEQUENTIAL ORDER. 2.1 PURSUANT TO THE DIRECTIONS OF THE ITAT DATED 25.6.2008, AO IN THE SECOND ROUND COMPUTED THE INCOME AT AN ASSESSED INCOME OF RS. 1,46,54,700/ - VIDE HIS ORDER DATED 31.3.2009 U/S. 143(3)/254 OF THE I.T. ACT, 1961. AGGRIEVED WITH THE ABOVE, REVENUE AGAIN FILE D THE APPEAL BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 29.9.2010 HAS DIRECTED THE AO TO ACCEPT THE LONG TERM CAPITAL GAIN. AGGRIEVED WITH THE LD. CIT(A) ORDER, THE REVENUE HAS COME BEFORE THE TRIBUNAL AGAIN AND IN THE SECOND ROUND THE TRIBUNAL IN ITA NO. 5560/DEL/2010 (A.Y. 2004 - 05) VIDE ORDER DATED 25.10.2011 HAS DISMISSED THE ORDER OF THE REVENUE BY CONFIRMING THE ACTION OF THE LD. CIT(A). 2.2 AGAINST THE ORDER OF THE TRIBUNAL DATED 25.10.2011, REVENUE HAS FILED THE APPEAL BEFORE THE HON BLE HIGH COURT OF DELHI IN ITA NO. 417/2012 VIDE ORDER DATED 15.7.2013 HAS REMANDED THE MATTER BACK TO THE TRIBUNAL FOR DECIDING WHETHER THE FINDINGS RECORDED BY THE AO ON THE QUESTION OF DATE OF ALLOTMENT ARE CORRECT OR NOT AND DIRECTED THE PARTIES TO APPEAR BEFORE THE TRIBUNAL ON 12.8.2013 . ITA NO. 5560/ DEL/ 2010 4 2.3 AGAINST THE IMPUGNED FINAL JUDGMENT AND ORDER DATED 15.7.2013 OF THE HON BLE HIGH COURT OF DELHI IN ITA NO. 417/2012, THE ASSESSEE, SH. SANJEEV MATHUR HAS PREFERRED A PETITION FOR SPECIAL LEAVE TO APPEAL (CC) NO. 61 45 OF 2014 BEFORE THE HON BLE SUPREME COURT OF INDIA AND THE HON BLE SUPREME COURT OF INDIA VIDE JUDGMENT DATED 3.7.2014 HAS PASSED THE FOLLOWING ORDER: - DELAY CONDONED. WE DO NOT FIND ANY REASON TO ENTERTAIN THIS PETITION. THE SPECIAL LEAVE PETI TION IS, ACCORDINGLY, DISMISSED. HOWEVER, WE CLARIFY THAT WHILE DECIDING THE CASE, THE TRIBUNAL SHALL NOT BE INFLUENCED BY THE OBSERVATIONS MADE BY THE HIGH COURT IN ITS IMPUGNED ORDER AND IT SHALL DECIDE THE MATTER ON THE FACTS AND MERITS OF THE CASE. 3. PURSUANT TO THE JUDGMENT DATED 3.7.2014 OF THE HON BLE SUPREME COURT OF INDIA, THE CASE WAS HEARD BEFORE THE TRIBUNAL . 4. LD. DR RELIED UPON THE ORDER OF THE AO AND REITERATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL. HE SUBMITTED THAT T HE LD. CIT(A) WAS WRONG IN DIRECTING THE AO TO ACCEPT THE CAPITAL GAIN ARISING FROM THE SALE OF SHARES ACQUIRED UNDER THE STOCK OPTION PLAN OF M/S MICROSOFT CORPORATION AS LONG TERM CAPITAL GAIN WITHOUT CONSIDERING THE DETAILED AND ELABORATE REASONING G IVEN BY THE AO AND THE JCIT IN TREATING THE SAID CAPITAL GAIN AS SHORT TERM. HE FURTHER SUBMITTED THAT LD. CIT(A) WAS WRONG IN HOLDING THAT THE AO HAD NO FURTHER JURISDICTION TO DECIDE THE ISSUE AFRESH AND THAT THE ONLY DIRECTION FROM THE TRIBUNAL WAS FOR VERIFICATION OF DATES OF ACQUISITION OF BONUS SHARES WHICH IS WRONG ON FACT (A) AS THE AO ITA NO. 5560/ DEL/ 2010 5 MADE THE ASSESSMENT U/S. 143(3)/254 SOLELY AS PER THE DIRECTIONS GIVEN BY THE TRIBUNAL I.E. TO VERIFY THE CORRECTNESS OF THE DATES OF ALLOTMENT OF SHARES AND TO P ASS THE CONSEQUENTIAL ORDER, (B) DATE OF ALLOTMENT IS NOT THE SAME AS THAT OF DATE OF VESTING . 5. ON THE CONTRARY, LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE ORDER OF THE LD. CIT(A) AND REQUESTED THAT THE SAME MAY BE UPHELD . TO SUPPORT HIS CONTENTION, HE RELIED UPON THE FOLLOWING JUDGMENTS FROM WHICH HIS CASE IS SQUARELY COVERED. A) ABHIRAM SETH VS. JCIT (2013) 79 DTR 63 (DELHI ITAT) B) ACIT VS. AMBRISH JHAMB (DELHI ITAT) ITA NO. 4107/D/11 DATED 5.10.2012. C) SH. GOPI G. NAMBIAR VS. JCIT (DELHI ITAT) ITA NO. 1083/D/2010 DATED 26.7.2013. D) ACIT VS. LAXMAN SHANKAR (ITAT, MUMBAI) ITA NO. 8697/MUM/2011 DATED 5.12.2014. E) ACIT VS. SH. PARAM PAUL UBEROI (DELHI ITAT) ITA NO. 4477/D/11 DATED 13.4.2012. F) ACIT VS . DR. DHURJATI GUPTA [2010] 127 TTJ 356 (ITAT HYD.) 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS, ESPECIALLY THE ORDERS OF THE AUTHORITIES BELOW AND THE SUBMISSION S MADE BY BOTH THE PARTIES BEFORE US ALONGWITH THE ORDER / JUDGMENT OF THE HON BLE DELHI HIGH COURT AND THE HON BLE SUPREME COURT OF INDIA. NOW WE FIND THAT THE AO IN THE FIRST ROUND WHILE COMPLETING THE ASSESSMENT U/S. 143(3) OF THE I.T. ACT, 1961 VIDE O RDER DATED 29.10.2006 HAS TREATED THE SHARES PURCHASED IN STOCK OPTION PLAN AS SHORT TERM CAPITAL GAIN AND LD. CIT(A) VIDE HIS ITA NO. 5560/ DEL/ 2010 6 ORDER DATED 17.5.2007 HAS HELD THAT ALL THE SHARES WERE HELD FOR MORE THAN ONE YEAR AND AS SUCH THE TRANSACTION IS TO BE TREA TED AS IN THE NATURE OF LONG TERM CAPITAL GAIN WHICH IS COVERED BY THE DELHI TRIBUNAL DECISION IN THE CASE OF ALOK KUMAR VS. JCIT 13 SOT 706. AGAINST THE ORDER OF THE LD. CIT(A), REVENUE CAME UP BEFORE THE TRIBUNAL AND TRIBUNAL VIDE ITS ORDER DATED 25 .6.2008 IN ITA NO. 3557/DEL/2007 VIDE PARA NOS. 5 TO 7 HAS HELD AS UNDER: - 5. THE REVENUE IS AGGRIEVED. THE ONLY ARGUMENT ADVANCED ON BEHALF OF THE REVENUE BY THE LD. DR WAS THAT THE CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS ERRONEOUSLY ADMITTED ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A(3) OF I.T. RULES. CERTAIN DOCUMENTS NOT FILED BEFORE THE AO WERE TAKEN INTO ACCOUNT AND RELIEF ALLOWED TO ASSESSEE. NO OPPORTUNITY WHATSOEVER WAS PROVIDED TO THE AO TO REBUT THE CLAIM OF THE ASSESSEE. THE LD. D R ALSO PLACED ON RECORD LETTER DATED 11/13 TH JUNE, 2008 WRITTEN BY THE AO TO THE ABOVE EFFECT TO THE LD. DR. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY CONTRADICTED ABOVE CLAIM OF THE REVENUE. HE STATED THAT NO ADDITIONAL EVIDENCE WAS FILED BEFORE THE LD. CIT(A). H E SPECIFICALLY CONTENDED THAT THE DETAIL OF THE BOUS SHARES ALLOTTED TO THE ASSESSEE BY THE COMPANY WERE GIVEN ON PAGE 9 WHICH WAS FILED BEFORE THE AO. THE DATE OF ACQUISITION OF BONUS SHARES AS PER ABOVE DOCUMENT IS AS UNDER: - VESTING SCHE DULED THIS GRANT IS FULLY VESTED: QUANTITY DESCRIPTION DATE 1,328 VESTED ON 7.15.1997 ITA NO. 5560/ DEL/ 2010 7 1,320 VESTED ON 1.15.1998 1,320 VESTED ON 7.15.1998 1,320 VESTED ON 1.15.1999 1,318 VESTED ON 7.15.1999 1,318 VESTED ON 1.15.2000 1,318 VESTED ON 7.15.2000 1,318 VESTED ON 1.15.2001 6. ALL THE AFORESAID SHARES WERE SOLD ON 18.6.03. THUS, IT IS WRONG ON THE PART OF THE REVENUE TO CONTEND THAT THE ASSESSEE EARNED SHORT TERM GAIN OR THAT ADDITIONAL EVIDENC E WAS FILED BEFORE THE LD. CIT(A). 7. WE HAVE GIVEN CAREFUL THOUGHT TO THE RIVAL SUBMISSIONS OF THE PARTIES. THERE IS NO DISPUTE ON THE AMOUNT OF CAPITAL GAIN LIABLE TO BE TAXED IN THE HANDS OF THE ASSESSEE. THE DISPUTE IS WHETHER CAPITAL GAIN OF RS. 94 ,12,649/ - IS SHORT TERM OR LONG TERM CAPITAL GAIN. THE ASSESSEE HAS GIVEN THE DATES OF ACQUISITION OF BONUS SHARES WHICH WERE SOLD AND ON WHICH CAPITAL GAIN IN DISPUTE ACCRUED TO THE ASSESSEE. THE DATES ARE GIVEN ON PAGE 9 OF THE PAPER BOOK AND HAVE BEE N REPRODUCED ABOVE. DURING THE COURSE OF HEARING, THE LD. DR SUBMITTED THAT ABOVE DATES ARE REQUIRED TO BE VERIFIED BY THE AO. LD. COUNSEL FOR THE ASSESSEE SHRI SINGHVI WAS GOOD ENOUGH TO AGREE TO THE LIMITED EXTENT OF VERIFICATION BY THE AO OF THE DATE S OF ALLOTMENT OF BONUS SHARES. THE MATTER FOR THE ABOVE LIMITED PURPOSE MAY BE REMITTED BACK TO THE AO. NO OTHER CLAIM WAS MADE ITA NO. 5560/ DEL/ 2010 8 BEFORE US. IN THE LIGHT OF STAND OF THE PARTIES, WE REMIT THE CASE TO THE FILE OF THE AO FOR VERIFICATION OF DATES STATED BY THE ASSESSEE AS NOTED ABOVE. IF DATES OF ALLOTMENT OF SHARES ARE FOUND TO BE CORRECT, THE AO IS DIRECTED TO ACCEPT THE CLAIM OF THE ASSESSEE RELATING TO LONG TERM CAPITAL GAIN. HE SHOULD PASS CONSEQUENTIAL ORDER. 6.1 PURSUANT TO THE AFORESAID DIRECTI ONS OF THE ITAT VIDE ORDER DATED 25.6.2008, AO IN THE SECOND ROUND COMPUTED THE INCOME AT AN ASSESSED INCOME OF RS. 1,46,54,700/ - VIDE HIS ORDER DATED 31.3.2009 U/S. 143(3)/254 OF THE I.T. ACT, 1961 BY HOLDING AS UNDER: - 7. NOW CONSIDERING OVERALL FACTS OF THE CASE AND EVIDENCE FURNISHED BY THE ASSESSEE I.E. IN THE FORM OF PAGE 9 OF THE PAPER BOOK AND THE ABOVE DIRECTIONS OF THE JCIT, R - 47, THE CONSEQUENTIAL ORDER IS PASSED. THE ASSESSEE HAS INTIMATED THE DATE OF EXERC ISE OF OPTION AS 18.6.03 IN THE DOCUMENT PRODUCED. THIS DATE IS TAKEN AS THE DATE OF ALLOTMENT OF SHARES IN QUESTION WHICH WERE VESTED WITH THE ASSESSEE AS PER DATES MENTIONED IN PARA 3 ABOVE. THESE SHARES ARE ALSO SOLD ON 18.6.03 ITSELF AND THE SALE PROC EEDS RECEIVED IN THE ACCOUNTS OF THE ASSESSEE ON 25.6.03. THIS IS CLEARLY A CASE OF STCG AS THE SHARES ARE HELD FOR LESS THAN 12 MONTHS AFTER THE DATE OF ALLOTMENT. AS SUCH CLAIM OF THE ASSESSEE RELATING TO LONG TERM CAPITAL GAIN CANNOT BE ACCEPTED. ITA NO. 5560/ DEL/ 2010 9 6. 2 AGGRIEVED WITH THE ABOVE, REVENUE AGAIN FILED THE APPEAL BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 29.9.2010 IN PARA NO. 5 AT PAGE S 6 TO 8 HAS HELD AS UNDER: - 5. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, SUBMISSION OF THE APPELLA NT AND VARIOUS ORDERS PLACED ON RECORD. THERE IS NO DISPUTE THAT ONLY GROUND BEFORE TRIBUNAL WAS IN RESPECT OF FURNISHING OF ADDITIONAL EVIDENCE AND THE MATTER WAS RESTORED FOR LIMITED PURPOSE OF VERIFICATION OF DATES REFERRED TO IN ANNEXURE - 9 WHICH HAS B EEN EXTRACTED IN THE ORDER OF THE TRIBUNAL ITSELF. THERE HAS BEEN NO GROUND, SUBMISSION OR FINDING OF THE TRIBUNAL ON THE MERITS OF THE CASE AND THE MATTER WAS RESTORED BY HON BLE TRIBUNAL FOR LIMITED PURPOSE OF VERIFICATION TO IN ANNEXURE - 9 OF THE PAPER BOOK. THE FINDING OF THE TRIBUNAL AS RECORDED IN PARA 5 - 7 CLARIFY THE FACTUAL POSITION TO THIS EFFECT. THE ONLY DIRECTION WAS FOR VERIFICATION OF DATES OF ACQUISITION OF BONUS SHARES AND THERE HAS BEEN NO FINDING OR DIRECTION IN RELATION TO MERITS OF TH E CLAIM. IN THE CONSEQUENTIAL ORDER, THE AO HAS NOT DISPUTED THE CORRECTNESS OF DATES REFERRED TO IN ANNEXURE - 9 AND IN THE CONTEXT OF SAME, THE ISSUE ON MERITS STAND CONCLUDED AND FINAL AS PER ORDER OF THE CIT(A) DATED 17/5/07. IN FACT, THE HON BLE TRIBU NAL IN THE MISCELLANEOUS APPLICATION ITSELF HAS ALSO MADE OBSERVATION THAT MERELY BECAUSE AO HAS ALLEGEDLY MISREAD THE ORDER OF THE TRIBUNAL, THERE COULD BE NO CASE OF MODIFICATION OR RECTIFICATION OF ORDER OF THE TRIBUNAL AS DIRECTION OF THE ITA NO. 5560/ DEL/ 2010 10 TRIBUNAL WAS SPECIFIC AND FOR LIMITED PURPOSE OF VERIFICATION OF DATES. AFTER TAKING INTO CONSIDERATION ALL THE RELEVANT FACTS, I AM OF THE CONSIDERED OPINION THAT ONCE THE VERIFICATION IN RESPECT OF DATES REFERRED TO IN ANNEXURE ARE CARRIED OUT AND THERE IS NO DIS PUTE ABOUT CORRECTNESS OF SAME, THE AO HAS NO FURTHER JURISDICTION TO DECIDE THE ISSUE AFRESH ON MERITS. THE ORDER OF THE AO ON MERITS IS NOT IN CONFORMITY WITH THE DIRECTION OF THE TRIBUNAL AS THE TRIBUNAL HAS NO WHERE ISSUED DIRECTION TO RE - EXAMINE THE MERITS OF THE CLAIM AND ONLY DIRECTION WAS FOR VERIFICATION OF DATES OF ACQUISITION OF BONUS SHARES IN RESPECT OF WHICH THERE IS NO DISPUTE OR CONTROVERSY. ON THE MERITS OF THE CLAIM, THE ISSUE IS FINAL AS PER ORDER OF THE CIT(A) AND ACCORDINGLY AO IS D IRECTED TO ACCEPT THE LONG TERM CAPITAL GAIN. 6.3 AGAINST THE ORDER OF THE LD. CIT(A), THE REVENUE HAS COME BEFORE THE TRIBUNAL AGAIN AND IN THE SECOND ROUND THE TRIBUNAL IN ITA NO. 5560/DEL/2010 (A.Y. 2004 - 05) VIDE ORDER DATED 25.10.2011 HAS DISMISSED THE ORDER OF THE REVENUE BY CONFIRMING THE ACTION OF THE LD. CIT(A) BY HOLDING AS UNDER: - 6. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE MATERIAL ON RECORD. THE TRIBUNAL REMITTED THE MATTER BY MAKING THE FOLLOWING OBSERVATIONS: - WE HAVE GIVEN CAREFU L THOUGHT TO THE RIVAL SUBMISSIONS OF THE PARTIES. THERE IS NO DISPUTE ON THE AMOUNT OF CAPITAL GAIN LIABLE TO BE TAXED IN THE HANDS OF THE ASSESSEE. THE DISPUTE IS WHETHER CAPITAL GAIN OF RS. 94,12,649/ - IS SHORT TERM OR LONG ITA NO. 5560/ DEL/ 2010 11 TERM CAPITAL GAIN. THE ASS ESSEE HAS GIVEN THE DATES OF ACQUISITION OF BONUS SHARES WHICH WERE SOLD AND ON WHICH CAPITAL GAIN IN DISPUTE ACCRUED TO THE ASSESSEE. THE DATES ARE GIVEN ON PAGE 9 OF THE PAPER BOOK AND HAVE BEEN REPRODUCED ABOVE. DURING THE COURSE OF HEARING, THE LD. DR SUBMITTED THAT ABOVE DATES ARE REQUIRED TO BE VERIFIED BY THE AO. LD. COUNSEL FOR THE ASSESSEE SHRI SINGHVI WAS GOOD ENOUGH TO AGREE TO THE LIMITED EXTENT OF VERIFICATION BY THE AO OF THE DATES OF ALLOTMENT OF BONUS SHARES. THE MATTER FOR THE ABOVE LI MITED PURPOSE MAY BE REMITTED BACK TO THE AO. NO OTHER CLAIM WAS MADE BEFORE US. IN THE LIGHT OF STAND OF THE PARTIES, WE REMIT THE CASE TO THE FILE OF THE AO FOR VERIFICATION OF DATES STATED BY THE ASSESSEE AS NOTED ABOVE. IF DATES OF ALLOTMENT OF SHA RES ARE FOUND TO BE CORRECT, THE AO IS DIRECTED TO ACCEPT THE CLAIM OF THE ASSESSEE RELATING TO LONG TERM CAPITAL GAIN. HE SHOULD PASS CONSEQUENTIAL ORDER. 7. FROM THE ABOVE, IT IS EVIDENT THAT THE DIRECTIONS ISSUED BY THE TRIBUNAL WERE VERY SPECIFIC AN D CLEAR. THE SAME HAVE ALSO BEEN REPRODUCED, ALONG WITH PARA 4 OF THE TRIBUNAL S ORDER, AT PAGES 5 & 6 OF THE IMPUGNED ORDER. 8. AS CORRECTLY OBSERVED BY THE LD. CIT(A), THE MATTER WAS RESTORED ONLY FOR THE LIMITED PURPOSE OF VERIFICATION OF DATES REFE RRED TO IN ANNEXURE 9, AS REPRODUCED IN THE TRIBUNAL ORDER. THIS IS THE VESTING SCHEDULE. THE TRIBUNAL DID NOT EITHER MAKE ANY OBSERVATION OR RECORD ANY FINDING APROPOS THE ITA NO. 5560/ DEL/ 2010 12 MERITS OF THE CASE. THE AO WAS ONLY TO CARRY OUT THE VERIFICATION OF THE DATES REFERRED TO AT PAGE 9 OF THE ASSESSEE S PAPER BOOK AS FILED BEFORE THE TRIBUNAL. THE CORRECTNESS OF THE DATES WERE NOT DISPUTED IN THE ORDER PASSED BY THE AO CONSEQUENT ON THE REMAND. THIS POSITION HAS REMAINED UNHINGED. SO FAR AS REGARDS THE MERITS, T HEY WERE DECIDED BY THE LD. CIT(A) VIDE HIS ORDER DATED 17.5.07. EVEN IN THE MISC. APPLICATION FILED BEFORE THE TRIBUNAL, THE TRIBUNAL OBSERVED THAT THE DIRECTIONS ISSUED WERE SPECIFIC, FOR THE LIMITED PURPOSE OF VERIFICATION OF DATES AND THAT THE AO HAD MISREAD THE TRIBUNAL ORDER. 9. IN THE ABOVE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY ERROR WHATSOEVER IN THE ORDER OF THE LD. CIT(A), WHICH IS HEREBY CONFIRMED, REJECTING THE GRIEVANCE SOUGHT TO BE RAISED BY THE DEPARTMENT. 6 . 4 AGAINST THE ORDER OF TH E TRIBUNAL DATED 25.10.2011, REVENUE FILED THE APPEAL BEFORE THE HON BLE HIGH COURT OF DELHI VIDE ITA NO. 417/2012 . THE HON BLE HIGH COURT OF DELHI VIDE ORDER DATED 15.7.2013 HAS REMANDED THE MATTER BACK TO THE TRIBUNAL FOR DECIDING WHETHER THE FINDINGS R ECORDED BY THE AO ON THE QUESTION OF DATE OF ALLOTMENT ARE CORRECT OR NOT AND DIRECTED THE PARTIES TO APPEAR BEFORE THE TRIBUNAL ON 12.8.2013 . 6 . 5 AGAINST THE J UDGMENT AND ORDER DATED 15.7.2013 OF THE HON BLE HIGH COURT OF DELHI IN ITA NO. 417/2012, THE ASSESSEE, HAS PREFERRED A PETITION FOR SPECIAL LEAVE TO APPEAL (CC) NO. 6145 OF 2014 BEFORE THE HON BLE SUPREME COURT OF INDIA AND THE HON BLE ITA NO. 5560/ DEL/ 2010 13 SUPREME COURT OF INDIA VIDE ITS JUDGMENT DATED 3.7.2014 HAS PASSED THE FOLLOWING ORDER: - DELAY CONDONED. WE DO NOT FIND ANY REASON TO ENTERTAIN THIS PETITION. THE SPECIAL LEAVE PETITION IS, ACCORDINGLY, DISMISSED. HOWEVER, WE CLARIFY THAT WHILE DECIDING THE CASE, THE TRIBUNAL SHALL NOT BE INFLUENCED BY THE OBSERVATIONS MADE BY THE HIGH COURT IN ITS IMPUGNED ORDER AND IT SHALL DECIDE THE MATTER ON THE FACTS AND MERITS OF THE CASE. 6.6 IN COMPLIANCE OF THE ORDER DATED 03.7.2014 PASSED BY THE HON BLE SUPREME COURT OF INDIA, THE PRESENT APPEAL WAS HEARD AT LENGTH. AFTER HEARING BOTH THE PARTIES AND PERUS ING THE RECORDS ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES, TRIBUNAL, HON BLE HIGH COURT AND THE HON BLE SUPREME COURT OF INDIA, WE ARE OF THE CONSIDERED VIEW THAT THE ISSUE IN DISPUTE IN THE PRESENT APPEAL IS WHETHER THE ASSESSEE HAS GAINED SHORT TERM CAPITAL GAIN OR LONG TERM CAPITAL GAIN ON THE SALE OF SHARES UNDER STOCK OPTION PLAN. ASSESSEE HAS FILED H IS EVIDENCES BEFORE THE REVENUE AUTHORITIES FOR SUBSTANTIATING HIS CLAIM BEFORE THEM AND THE REVENUE AUTHORITIES HAS ALSO GAVE THEIR OPINION WHICH REMAINED UNDER APPEAL BEFORE THE TRIBUNAL, HON BLE HIGH COURT AND THE HON BLE SUPREME COURT OF INDIA. FINALL Y, THE HON BLE SUPREME COURT OF INDIA HAS DIRECTED THE TRIBUNAL TO DECIDE THE MATTER ON FACTS AS WELL AS ON MERIT WITHOUT INFLUENCE BY THE OBSERVATIONS MADE BY THE HON BLE HIGH COURT. WE HAVE THOROUGHLY EXAMINE THE ISSUE IN DISPUTE ALONGWITH FINDING G IVEN BY THE REVENUE AUTHORITIES AND WE FIND THAT THE ISSUE IN DISPUTE REQUIRE DETAILED EXAMINATION AT THE LEVEL OF THE ASSESSING ITA NO. 5560/ DEL/ 2010 14 OFFICER. THEREFORE, IN THE INTEREST OF JUSTICE, THE ISSUE IN DISPUTE IS REMITTED BACK TO THE FILE OF THE AO WITH THE DIRECTI ON TO EXAMINE THE ISSUE IN DISPUTE D E NOVO , AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. 7 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE O PEN C OURT ON 21 / 7 /20 1 5 . SD/ - SD/ - [ J.S. REDDY ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 21 / 7 /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