2013 (7) TMI 944

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..... As a short issue arises for consideration, we have heard learned counsel for the parties on the aforesaid question and proceed to dictate our decision. 3. The respondent is an individual and was an employee of Microsoft Corporation. For the assessment year 2004-05, he had filed return declaring income of Rs. 1,46,54,703/-. During the course of assessment proceedings, it was noticed that the assessee had sold shares, which were acquired by him under Stock Option Plan. Gain on sale of shares was declared as long term capital gain. The Assessing Officer did not accept the said claim and held that the sale of shares was taxable as short term capital gain and made an addition of Rs. 94,12,649/-. CIT (Appeals), however, accepted the plea of ....

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....he Assessing Officer observed that the vesting date of shares was different from the date of allotment. Sale transactions were short term capital gain and not long term capital gain. It was also observed that the vesting schedule had a different purpose and cannot be treated as the date of allotment. He accordingly held that the sale consideration received was taxable as short term capital gain after recording in the order the date of allotment of the shares sold. Case law on the subject was referred to. 6. The assessee succeeded in the first appeal wherein CIT (Appeals) observed that remand order was for a limited purpose and the Assessing Officer could not have examined the question, when allotment of share had taken place. 7. Reven....

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....ssing Officer. We have specifically quoted the said direction in the order of the tribunal dated 25th June, 2008. The main dispute was whether Rs. Rs. 94,12,649/- was short term capital gain or long term capital gain. The assessee had given the dates of allotment, but this had to be verified by the Assessing Officer. For the purpose of verification, the matter was remanded. It was directed that if the dates of allotment of shares were found to be correct, the Assessing Officer would accept the claim of the assessee relating to long term capital gain and pass consequential order. Thus, what was to be verified and examined were the dates of allotment of shares. While examining the said aspect, the Assessing Officer had to go into the question....