ABBOTT EQUITY HOLDINGS UNLIMITED, MUMBAI V. DDIT (IT) RG 1(1), MUMBAI

ITA 7343/MUM/2010

• Counselvise Citation: 734319914 RSA 2010
• Duration Of Justice: 3 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: L
• Next Hearing Date: 04-02-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 27-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY SRI VASTAVA
• Keywords: Capital asset; Cost of acquisition
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI . . , , , BEFORE SHRI P.M. JAGTAP , ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIAL MEMBER . / ITA NO. 5086 / MUM./ 2009 ( / ASSESSMENT YEAR : 20 06 07 ) ASSTT. DIRECTOR OF INCOME TAX (I.T) CIRCLE 1(1), ROOM NO.117 SCINDIA HOUSE, BALLARD PIER MUMBAI 400 038 .. / APPELLANT V/S M/S. ABBOTT CAPITAL INDIA LTD. , CORPORATE PARK SION TROMBAY ROAD, CHEMBUR MUMBAI 400 071 .... / RESPONDENT . / PERMANENT ACCOUNT NUMBER AAECA2317F . / ITA NO. 7343 / MUM./ 2010 ( / ASSESSMENT YEAR : 20 06 07 ) M/S. ABBOT T EQUITY HOLDING S UNLIMITED , CORPORATE PARK SION TROMBAY ROAD, CHEMBUR MUMBAI 400 071 .. / APPELLANT V/S DY. DIRECTOR OF INCOME TAX (I.T) RANGE 1(1), ROOM NO.117 SCINDIA HOUSE, BALLARD PIER MUMBAI 400 038 .... / RESPONDENT . / PERMANENT ACCOUNT NUMBER AAECA2317F / REVENUE BY : MR. AJAY SRIVASTAVA / ASSESSEE BY : MR. NITESH JOSHI M/S. ABBOTT CAPITAL INDIA LTD. 2 / DATE OF HEARING 23 . 0 4 .201 4 / DATE OF ORDER 02.05.2014 / ORDER , / PER AMIT SHUKLA , J.M. THE PRESENT APPEAL S HA VE BEEN PREFERRED BY THE EITHER PARTY FOR THE ASSESSMENT YEAR 2006 07, VIDE WHICH, THE REVENUE HAS CHALLENG ED THE IMPUGNED ORDER DATED 2 2 ND DECEMBER 200 9 , PASSED BY THE COMMISSIONER (APPEALS) X X X I , MUMBAI, IN RELATION TO THE ORDER PASSED UNDER SECTION 195(2) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ), WHEREAS, THE ASSESSEE HAS PREFERRED THE APPEAL CHALLENGING THE IMPUGNED FINAL ASSESSMENT ORDER DATED 25 TH AUGUST 2010, PASSED IN PURSUANCE OF THE DIRECTION GIVEN BY THE DRP, UNDER SECTION 144C(5) FOR THE QUANTUM OF ASSESSMENT PASSED UNDER SECTION 143(3) . SINCE GROUNDS RAISED BY ASSESSEE AS WELL AS THE REVENUE ARE COMMON, THEREFORE, AS A MATTER OF CONVENIENCE, THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER. WE FIRST PROCEED TO DECIDE THE REVENUES APPEAL IN ITA NO.5086/MUM./2009, FOR THE ASSESSMENT YEAR 2006 07. GROUND RAISED BY THE REVENUE, READ AS FOLLOWS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN HOLDING THAT THE BENEFIT OF THE PROVISO TO SECTION 112 WOU LD BE APPLICABLE TO NONRESIDENT ASSESSEE WITHOUT CONSIDERING THE DECISION IN THE CASE OF BASF AKTIENGESELLCHAFT V/S DDIT (293 ITR AT 001) 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN HOLDING THAT THE TAX HAS TO BE DEDUCTION AT 10% + SC INSTEAD OF 20% + SC. 2 . FACTS IN BRIEF : THE ASSESSEE IS A NON RESIDENT COMPANY HAVING ITS REGISTERED OFFICE IN U.K. IT HAS PURCHASED 11,66,184 SHARES OF AN M/S. ABBOTT CAPITAL INDIA LTD. 3 INDIAN COMPANY NAMELY ABBOTT INDIA LTD., THE SHARES OF WHICH ARE LISTED IN BOMBAY STOCK EXCHANGE. THE SELLER OF THE SAID SHARE IS ABBOTT EQUITY HOLDINGS LTD. WHICH IS ALSO A COMPANY HAVING A REGISTERED OFFICE IN THE U.K. THE ASSESSEE FILED AN APPLICATION FOR CERTIFICATE UNDER SECTION 197 IN FORM NO.13, FOR LOW DEDUCTION OF TAX @ 10.455% ( I.E., 10% INCOME TAX + 2.5% SURCHARGE + 2% EDUCATION CESS ) ON 7 TH NOVEMBER 2005, IN RESPECT OF SALE OF SHARES OF ABBOTT INDIA LTD. IN RESPONSE TO THE SHOW CAUSE NOTICE, AS TO WHY WITHHOLDING TAX SHOULD NOT BE @ 20% AS PER SECTION 112(C), THE ASSESSEE SUBMITTED THAT THE SHARES WHICH ARE THE SUBJECT OF TRANSFER IS A LISTED COMPANY AND IN TERMS OF PROVISO TO SECTION 112, THE RATE OF TAX APPLICABLE ON LONG TERM CAPITAL GAIN IS 10%. HOWEVER, THE ASSESSING OFFICER REJECTED THE ASSESSEES CONTENTION ON THE GROUND THAT PROVISO IS APPLICABLE TO ANY OTHER RESIDENT AND NOT TO THE NON RESIDENT AND HELD THAT WITHHOLDING THE TAX SHOULD BE 20% + 2.5% SURCHARGE + 2% EDUCATION CESS. 3 . BEFORE THE LEARNED COMMISSIONER (APPEALS), DETAIL SUBMISSIONS WERE MADE. RELI ANCE WAS ALSO PLACED ON VARIOUS DECISIONS WHICH HAS BEEN NOTED BY THE LEARNED COMMISSIONER (APPEALS) IN PARA 1.2 AND 1.3 IN HIS ORDER. THE LEARNED COMMISSIONER (APPEALS) DULY APPRECIATED THE ASSESSEES SUBMISSION AND DIRECTED THE ASSESSING OFFICER TO CHARG E @ 10.455% WHICH IS EXCLUSIVE OF INCOME TAX, SURCHARGE AND EDUCATION NCESS. THE RELEVANT OBSERVATIONS AND FINDINGS OF THE LEARNED COMMISSIONER (APPEALS) ARE AS UNDER: I HAVE CONSIDERED THE FACTS AND SUBMISSIONS OF THE LD.A.R. IT IS SEEN THAT THE APPLICAN T M/S.ABBOTT EQUITY H O LDINGS LTD. IS FOREIGN COMPANY AND IT HAS PURCHASED 11,66,184 SHARES OF ABBOTT INDIA LTD. AN INDIAN CO. WHOSE S HARES ARE REGISTERED ON THE BOMBAY STOCK EXCHANGE THE AO HELD THAT IN VIEW OF THE PROVISO TO SECTION 112 OF THE ACT WHICH REFERS TO 2 ND PROVISO T O SECTION 48, THE ASSESSEE IS NOT ENTITLED TO LOWER RATE OF TAXATION AT THE RATE OF 10% + S URCHARGE AND EDUCATION CESS AS APPLICABLE. ON READING OF THE M/S. ABBOTT CAPITAL INDIA LTD. 4 PROVISIONS OF SECTION 112 IT BECOMES CLEA R THAT WHERE LTCG ARISE FROM THE TRANSFER OF SHARE OR DEBENTURES OF AN INDIAN CO. TO A NON RESIDENT, THE BENEFIT OF INDEXED COST OF ACQUISITION AND INDEXED COST OF IMPROVEMENT CANNOT B E ALLOWED. HOWEVER, PROVISIONS TO SECTION 112 MAKES IT CLEAR THAT WHERE T HE TAX PAYAB LE IN RESPECT OF TRANSFER OF A LONG TERM CAPITAL ASSET BEING LISTED SECURITIES OR UNITS EXCEEDS 10% OF THE. TAX RATE ON CAPITAL GAIN THEN SUCH EXCESS SHALL BE IGNORED. THE SIGNIFICANCE OF THE WORDS BEFORE GIVING EFFECT TO THE SECOND PROVISO TO SECTION 48' IS MANIFESTED BY THE FACT THAT THE RATE IS TO BE DETERMINED BY COMPUTING CAPITAL GAIN BY ADOPTING THE COST OF ACQUISITION AND COST OF IMPROVEMENT OR THE INDEXED COST OF ACQUISITION AND THE COST OF IMPROVEMENT AS THE CASE MAY BE. SINCE, IN THE C ASE OF APPELLANT, ON TRANSFER OF SHARES OF INDIAN COMPANY THE SECOND PROVISO TO SECTION 48 IS NOT APPLICABLE IN AS MUCH AS THE BENEFIT OF INDEXATION CANNOT BE GRANTED, THE MANDATE OF THE PROVISO TO SECTION 112 WILL SIMPLY BE TO THE EFFECT THAT THE TAX PAYA BLE HAS TO BE COMPUTED AND SUCH TAX IN EXCESS OF 10% IS TO BE IGNORED. RELIANCE IS PLACED ON THE DECISION OF THE JURISDICTIONAL TRIBUNAL IN THE CASE OF CHICAGO PNEUMATIC TOOL COMPANY VS. DDIT(IT) REPORTED IN (2009) TIOL - 330 - ITAT - MUM WHEREIN AFTER RELYING ON THE RULING IN THE CASE OF MC.LEOD RUSSEL KOLKATA LTD .(2008)215 CTR(AAR)230 AND ALCAN INC. VS. DDIT(IT)(2007) 112 TTJ (MUM) 328, IT WAS HELD THAT THE BENEFIT OF PROVISO TO SECTION 112(1) OF THE ACT COULD NOT BE DENIED TO NON - RESIDENT FOREIGN COS EVEN I F THEY ARE ENTITLED TO ANOTHER RELIEF IN TERMS OF FIRST PROVISO TO SECTION 48 OF THE ACT. THE PROTECTION IN TERMS OF FIRST PROVISO TO SECTION 48 OF THE ACT IS MADE AVAILABLE TO NON - RESIDENT MIGHT BE A JUSTIFICATION TO DENY THE BENEFIT OF INDEXATION, BUT TH E SAME CANNOT BE SAID FOR THE APPLICATION ON LESSER RATE. THE A.R. HAS ALSO PLACE RELIANCE ON COMPAGNIE FINANCIERE HAMON (2009) TIOL - 03 - MR - IT(MR) AND FOUR STAR OIL & GAS CO. (21 DTR 50) (MR) WHEREIN IT WAS HELD THAT BENEFIT OF PROVISO TO SECTION 112 (1) C ANNOT BE DENIED TO FOREIGN COMPANIES EVEN IF THEY ARE ENTITLED TO RELIEF UNDER THE PROVISO TO SECTION 48 OF THE I.T. ACT. IN VIEW OF THE ABOVE FACTS I AM OF THE VIEW THAT THE ASSESSEE IS ENTITLED TO CONCESSIONAL RATE OF TAX @ 10% + SURCHARGE AT THE RATE O F 2.5% + EDUCATION CESS AT THE RATE OF 2% ON THE SHARES BEING TRANSFERRED FROM ONE NON RESIDENT TO ANOTHER NON - RESIDENT I.E. ABBOTT EQUITY HOLDINGS LTD. REGISTERED IN U.K. TO ABBOTT CAPITAL INDIA LTD., OF U.K. ACCORDINGLY THE AO IS DIRECTED TO CHARGE THE R ATE OF 10.455% I.E. 10% IT + 2.5 % SURCHARQE + 2% EDUCATION CESS. ACCORDINGLY THIS GROUND OF APPEAL IS ALLOWED. 4 . BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE HAS NO W BEEN SETTLED BY THE HON'BLE DELHI HIGH COURT IN CAIRM U.K. HOLDINGS LTD. V/S DIT, [2013] 359 ITR 268. EARLIER ALSO, THERE W ERE SEVERAL TRIBUNAL DECISIONS IN FAVOUR OF THE ASSESSEE. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY RELIED M/S. ABBOTT CAPITAL INDIA LTD. 5 UPON THE DECISION OF THE BASF AKTIENGESELLCHAFT V/S DDIT , 293 ITR (AT) 001 . HOWEVER, HE ADMITTED THAT THE LATEST DELHI HIGH COURT DECISION HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE. 5 . AFTER CAREFULLY CONSIDERING THE RELEVANT FINDINGS AND OBSERVATIONS OF THE LEARNED COMMISSIONER (APPEALS) AS WELL AS THE DECI SION OF THE HON'BLE DELHI HIGH COURT CITED SUPRA, WE FIND THAT THE ISSUE OF CHARGEABILITY OF RATE OF TAX UNDER THE LONG TERM CAPITAL GAIN ON A TRANSFER OF LISTED SHARES BY NON RESIDENT HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE AFTER ANALYZING THE PROVISIO NS OF SECTION 48 AND 112 IN GREAT DETAIL. THEIR LORDSHIPS, AFTER DISCUSSING THE VARIOUS PROVISIONS OF SECTION 48 AND ALSO SECTION 112, HAVE OPINED AS UNDER: IN THE CASE OF A NON - RESIDENT, UNDER SUB - CLAUSE (C) OF SECTION 112(1), INCOME - TAX IS CALCULATED ON LONG - TERM CAPITAL GAINS AT 20 PER CENT. THE PROVI SO TO SECTION 112(1), HOWEVER, GIVES A BENEFICIAL OPTION TO TAXPAYERS ON TRANSFER OF LONG - TERM CAPITAL ASSETS BEING LISTED S ECURITIES, UNITS OR ZERO PER CENT. COUPON BONDS. THEY ARE LIABLE TO PAY TAX AT 10 PER CENT. ON THE AMOUNT OF CAPITAL GAINS, BUT BEFORE GIVING EFFECT TO THE PROVISIONS OF THE SECOND PROVISO TO SECTION 48, I.E., THE ASSESSEE HAS THE OPTION TO PAY TAX AT 10 PER CENT. WITHOUT THE BENEFIT OF INFLATION INDEXATION. TAX AT 10 PER CENT. IS P AYABLE ON THE CONSIDERATION RECEIVED, LESS THE EXPENDITURE WHOLLY AND EXCLUSIVELY INCURRED ON THE !JII}'LSFER, AND THE COST OF ACQUISITION AND THE COST OF IMPROVEMENT IN LANGUAGE OF THE PROVISO TO SECTION 112(1) SYN TACTICALLY AND GRAMMATICALLY MANDATES ON E INTERPRETATION. IF THE WORDS USED IN THE PROVISO ARE INTERPRETED WITHOUT EXTRACTING OR SUBTRACTING ANY PHRASE OR WORD, A NON - RE SI DENT ASSESSEE IS ENTITLED TO THE BENEFIT OF THE PROVISION. THE PROVISO TO SECTION 112(1) OF THE ACT DOES NOT STATE THAT AN AS SESSEE, WHO AVAILS OF THE BENEFITS OF THE FIRST PROVISO TO SECTION 48, IS NOT ENTITLED TO THE BENEFIT OF THE LOWER RATE OF TAX AT 10 PER CENT. THE BENEFIT CANNOT BE DENIED BECAUSE THE SECOND PROVISO TO SECTION 48 IS NOT APPLICABLE. THE STIPULATION FOR TAK ING ADVANTAGE OF THE PROVISO TO SECTION 112(1) IS THAT THE A GGREGATE OF LONG - TERM CAPITAL GAINS TO THE EXTENT THEY EXCEED 10 PER CENT. OF THE AMOUNT OF CAPITAL GAINS, SHOULD BE BEFORE GIVING EFFECT TO THE PROVISIONS OF THE SECOND PROVISO TO SECTION 48. INF LATION INDEXATION SHALL BE IGNORED. IF THE LEGISLATURE WANTED TO DENY THE BENEFIT WHERE THE ASSESSEE HAD TAKEN THE BENEFIT OF THE FIRST PROVISO TO SECTION 48, IT WOULD HAVE BEEN SPECIFICALLY STIPULATED THAT AN ASSESSEE, M/S. ABBOTT CAPITAL INDIA LTD. 6 WHO TAKES ADVANTAGE OF NEUTRALISATI ON OF EXCHANGE RATE FLUCTUATION UNDER THE FIRST PROVISO TO S EC TION 48 WOULD NOT BE ENTITLED TO PAY THE LOWER RATE OF TAX AT 10 PER CENT. THE LEGISLATURE IN FACT DID NOT INTEND TO DENY THE BENEFIT. FOR A NON - RESIDENT WHO HAS UTILISED OR BROUGHT IN FOREIGN CURRENCY FOR PURCHASE OF SHARES OR DEBENTURES IN INDIAN RUPEE, INFLATION IN INDIA IS IMMATERIAL AND INCONSEQUENTIAL. FOR HIM, THE GAIN OR LOS S IS TO BE COMPUTED WITH REFER ENCE TO THE FOREIGN CURRENCY UTILIZED FOR PURCH ASE AND FOREIGN CURRENCY AVAIL ABLE TO HIM FOR REPATRIATION AFTER THE SALE. FROM THE ASSESSEE'S VIEW POINT AND OBJECTIVE, HE IS MOST CONCERNED WITH EXCHANGE RATE FLUCTUATION AND HIS TRUE AND ACTUAL GAIN SHOULD TAKE INTO ACCOUNT THE EXCHANGE RATE FLUCTUATION. THE SECOND PROVISO TO SECTION 48 IS APPLICABLE TO ALL OTHERS INCLUDING NON - RESIDENTS, WHO ARE NOT COVERED BY THE FIRST PROVISO AND THEY ARE ENTITLED TO THE BENEFIT OF COST INDEXATION WHICH NEUTRALISES INFLATION. IT IS WRONG TO STATE THAT INFLATION ALONE CONTRIBUTES AND IS THE DETERMINATIVE FACTOR IN EXCHANGE RATE FLUCTUATION. THE FIRST PROVISO TO SECTION 48 ENSURES THAT A NON - RESIDENT, WHO UTILISED HIS FOREIGN CURRENCY, IS TAXED AFTER TAKI NG INTO CONSIDERATION THE FLUC TUATION IN EXCHANGE RATE. THE TWO PROVISOS CANNOT BE EQUATED AS GRANTING THE SAME RELIEF OR BENEFIT. THEY OPERATE INDEPENDENTLY AND HAVE DIFFERENT PURPOSES AND OBJECTIVES. THE BENEFITS UNDER THE FIRST PROVISO AND THE SECOND PROVISO TO SECTION 48 ARE NOT IDENTICAL NOR DO THEY SERVE THE SAME PURPOSE. THOUGH IT IS TRUE THAT IF T HE PROVISO TO SECTION 112(1) IS APPLIED, ALMOST ALL ASSESSEES COVERED BY THE FIRST PROVISO TO SECTION 48 WOULD BE LIABLE TO PAY TAX AT 10 PER CENT. ONLY AND NOT AT 20 PER CENT. ON LONG - TERM CAPITAL GAINS, THIS CANNOT BE A GROUND TO CONTEXTUALLY READ THE PR OVISO TO SECTION 112(1) DIFFERENTLY. THE PROVISO IS APPLICABLE TO LISTED SECURITIES OR UNITS OR ZERO COUPON BONDS. LONG - TERM CAPITAL GAINS TAX IS NOT PAYABLE ON LISTED SECURITIES SOLD THROUGH STOCK EXCHANGES AS SECURITIES TRANSACTION TAX IS PAYABLE. THE FI RST PROVISO TO SECTION 48 IS APPLICABLE ON SALE OF SHARES OR DEBENTURES IN AN INDIAN COMPANY, WHETHER OR NOT THE SHARES OR DEBENTURES ARE LISTED. THUS, THE PROVISO TO SECTION 112(1) IS MORE RESTRICTIVE AND WILL NOT NECESSARILY APPLY IN ALL CASES COVERED B Y THE FIRST PROVISO TO SECTION 48. SECONDLY, THE PROVISO TO SECTION 112(1) IS NOT APPLICABLE TO DEBENTURES. NEVERTHELESS, THE PROVISO TO SECTION 112(1) IS APPLICABLE TO UNITS AND ZERO COUPON BONDS, WHICH ARE NOT COVERED BY THE FIRST PROVISO TO SECTION 48 O F THE ACT. THE SECOND PROVISO TO SECTION 48 IS NOT APPLICABLE ON TRANSFER OF A LONG - TERM CAPITAL ASSET BEING BOND, DEBENTURE OTHER THAN THE CAPITAL INDEX BOND. ZERO COUPON BONDS ARE, HOWEVER, SPECI FI CALLY MADE ELIGIBLE FOR THE BENEFIT UNDER THE PROVISO TO SECTION 112(1). IT IS CLEAR FROM THIS THAT THE PURPOSE AND OB JECT BEHIND THE PROVISO TO SEC TION 112(1) ITSELF IS SOMEWHAT DEBATABLE, EXCEPT THAT THE LEGISLATIVE M/S. ABBOTT CAPITAL INDIA LTD. 7 INTENTION WAS TO TAX LONG - TERM CAPITAL GAINS ON LISTED SHARES, BONDS AND UNITS AT 10 PER CENT., WITHOUT THE BENEFIT OF INDEXATION UNDER THE SECOND PROVISO TO SECTION 48 OF THE ACT. LEGISLATIVE POLICY AND OBJECT IS NO THING MORE, AND IT IS IMPERMIS SIBLE TO READ INTO THE PROVISION AN AFFIRMATIVE L EGISLATIVE INTENTION ON ASSUMP TION AND GUESS WORK AND THIS WOULD BE BEYOND THE ACCEPTABLE PRINCIPLES OF INTERPRETATION. 6 . THUS, RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THE HIGH COURT, WE HOLD THAT THE ASSESSEE IS ENTITLED TO BENEFIT OF LOWER RATE OF TAX @ 10% WHILE COMPUTING THE TAX UNDER THE HEAD LONG TERM CAPITAL GAIN AND, ACCORDINGLY, THE GROUNDS RAISED BY THE R EVENUE STAND DISMISSED. 7 . 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED. WE NOW TAKE UP ASSESSEES APPEAL IN ITA NO. 7343/MUM./2010 , FOR THE ASSESSMENT YEAR 2006 07. IN THIS CASE ALSO, SIMILAR GROUND, AS RAISED BY THE REVENUE IN ITS APPEAL, HAVE BEEN RAISED WHICH ARE IN RESPECT OF THE REGULAR ASSESSMENT PROCEEDINGS. FOR THE SAKE OF READY REFERENCE, THE GROUND S RAISED BY THE ASSESSEE ARE REPRODUCED BELOW: 1. THE ASSESSING OFFICER HAS ERRED IN HOLDING THA T CAPITAL GAINS ARISING TO THE APPELLANT DURING THE YEAR UNDER CONSIDERATION ON SALE OF SHARES OF ABBOTT INDIA LTD. A COMPANY LISTED ON THE BSC, ARE CHARGEABLE TO TAX AT THE RATE OF 20% INSTEAD OF 10%. 2. THE APPELLANT SUBMITS THAT CONSIDERING THE FACTS AND CIRCUMSTANCES OF ITS CASE AND THE LAW PREVAILING ON THE SUBJECT, THE RATE OF WHICH CAPITAL GAINS ARE TAXABLE IS 10% IN TERMS OF PROVISO TO SECTION 112 OF THE ACT. 3. THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER BE DIRECTED TO TAX THE LONG TERM CA PITAL GAIN EARNED BY IT DURING THE YEAR ON M/S. ABBOTT CAPITAL INDIA LTD. 8 THE SALE OF SHARES IN QUESTION AT THE RATE OF 10% AND TO RE COMPUTE ITS TOTAL INCOME ACCORDINGLY. 8 . IN THIS APPEAL ALSO, RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE DELHI HIGH COURT CITED SUPRA, WE ALLOW TH E GROUND RAISED BY THE ASSESSEE. 9 . 9 . IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. 2 ND MAY 2014 ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND MAY 2014 SD / - . . P.M. JAGTAP ACCOUNTANT MEMBER SD / - AMIT SHUKLA JUDICIAL MEMBER MUMBAI, DATED : 2 ND MAY 2014 / COPY OF THE ORDER FORWARDED TO : ( 1 ) / THE ASSESSEE ; ( 2 ) / THE REVENUE; ( 3 ) ( ) / THE CIT(A ) ; ( 4 ) / THE CIT, MUMBAI CITY CONCERNED ; ( 5 ) , , / THE DR, ITAT, MUMBAI ; ( 6 ) / GUARD FILE . / TRUE COPY / BY ORDER . / PRADEEP J. CHOWDHURY / SR. PRIVATE SECRETARY / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI