TaxTMI 
TaxTMI 
2015 (7) TMI 779
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....es 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 dates 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.CIT(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 return 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....
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.... the Assessee, Sh. Sanjeev Mathur 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 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 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." 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 the 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 given by the AO and the JCIT in treating the said capital gain as short term. He furthe....
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.... 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. DR also placed on record letter dated 11/13th 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). He 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 Scheduled This grant is fully vested: Quantity Description Date 1,328 Vested on 7.15.1997 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 th....
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....who vide impugned order dated 29.9.2010 in para no. 5 at pages 6 to 8 has held as under:- "5. I have carefully considered the facts of the case, submission of the appellant 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 been 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 the 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 Tribunal ....
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....e 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." 7. From the above, it is evident that the directions issued by the Tribunal were very specific and 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 referred 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 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, they were decided by the ld. CIT(A) vide ....