2015 (2) TMI 70

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....lowing orders Tax Appeal No.At the Instance ofDate of Tribunal's order ITA No. Assessm ent Year 14 of 2004 Revenue27.06.20032241/Ahd/2002 1998-99 06 of 2004 Assessee27.06.20032241/Ahd/2002 1998-99 1295 of 2010 Revenue18.01.20101645/Ahd/2006 2002-03 1.1 These appeals were admitted by this Court for consideration of the following substantial questions of law: Tax Appeal No. 14 of 2004 "Whether the Income Tax Appellate Tribunal was correct in treating the sum of Rs. 6,80,40,724/- being the amount received on redemption of Stock Appreciation Rights (SARs) as capital gain as against treated as perquisite under Sec.17(2)(iii) of the I.T. Act or under Sec. 28(iv) of the Act purportedly on the ground that the em....

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....ction 17(2)(iii) of the Act or even alternatively under section 28(iv) of the Act. 3. Mr. B.S. Soparkar, learned advocate appearing on behalf of the assessee has submitted that as such the questions of law raised in the present Tax Appeals are now not res integra in view of the decision of the Honble Supreme Court in the case of Commissioner of Income Tax, Bangalore vs. Infosys Technologies Ltd reported in (2008) 297 ITR 167 (SC)  wherein the Hon'ble Supreme Court has held as under. "7. During the assessment years 1997-98, 1998-99 and 1999- 2000 there was no provision in the said 1961 Act which made the benefit by way of ESOP taxable as income specifically. It became specifically taxable only with effect from 1.4.2000 when Se....

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....troduced vide clause (iiia), the value of option became ascertainable. There is nothing in the Memorandum to the Finance Act, 1999 to say that this new mechanism would operate retrospectively. Further, a mechanism which explains cost in the manner indicated above cannot be read retrospectively unless the Legislature expressly says so. It was not capable of being implemented retrospectively. Till 1.4.2000, in the absence of the definition of the word cost, value of the option was not ascertainable. In our view, clause (iiia) is not clarificatory. Moreover, the meaning of the words specified securities in section (iiia) was defined or explained for the first time vide Finance Act, 1999 w.e.f. 1.4.2000. Moreover, the words allotted or transfer....