TaxTMI 
TaxTMI 
2016 (1) TMI 1027
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....he submissions made by the Ld A.R in this regard are set out in brief. During the year under consideration, there was a change in the shareholding pattern, consequent to the sale of shares by one of the share holders named Inter Gold Gems Pvt Ltd (IGGPL) to another shareholder named Rosy Blue (India) Pvt Ltd (RBPL). The IGIPL held 10,99,850 shares representing 54.99% of share capital and RBPL held 5,99,900 shares representing 30% of the share capital as at the beginning of the year. All through, i.e., before the AO, CIT(A) and Tribunal, it was submitted that the entire shareholding of 54.99% of share capital was transferred by IGGPL to RBPL. The effect of the said transfer of shares was that the assessee was denied the benefit of setting of....
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....g or demerged foreign company continue to be the shareholders of the amalgamated or the resulting foreign company.] Since it was submitted that the entire shareholding of IGGPL, i.e., 54.99% share capital was transferred, the AO noticed that the share holding pattern has changed by more than 51% and accordingly held that the assessee is not entitled to set off the brought forward losses in view of the provisions of sec. 79 of the Act. The said decision of the AO was unsuccessfully challenged before the Ld CIT(A) and the Tribunal. 3. It appears that the assessee has later realized that IGPPL has not transferred its entire 54.99% of the share capital but it has transferred only 54.79% of the share capital retaining 4000 shares representing ....
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....placing reliance on the decision rendered by Hon'ble Delhi High Court in the case of CIT Vs. Sakunthala Rajeshwar (160 ITR 840), submitted that the acceptance of a situation under an erroneous impression is a mistake rectifiable u/s 254(2) of the Act. He further placed reliance on the decision rendered by Hon'ble Jurisdictional Bombay High Court in the case of Supreme Industries Ltd Vs. CIT (2014)(369 ITR 758), wherein the Hon'ble Bombay High Court has observed that the Tribunal should adopt a justice oriented approach and not defeat the legitimate rights on the altar of procedures and technicalities. Accordingly, the Ld A.R submitted that the miscellaneous application of the assessee should be accepted and the impugned order should be amen....
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....e decision in the case of Shakuntala Rajeshwar (supra) was rendered on the peculiar facts available in that case. The Ld D.R submitted that it was a case of computation of capital gain arising on sale of property in the hands of one of the co-owners. Before the Tribunal, the assessee referred to the decision rendered by Ld CIT(A) in the hands of another co-owner, wherein the Ld CIT(A) had determined the market value of the property at Rs. 42.50 lakhs. The representative of the assessee submitted before the Tribunal that the value determined by Ld CIT(A) has been accepted by the department and hence the assessee would be satisfied in the same value was adopted. Accordingly the order was passed by the Tribunal. Later on, it came to the notice....
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....ecord. There is no dispute with regard to the fact that the share holding pattern, now presented before us, was not available before the tax authorities as well as the Tribunal during the hearing of appeal. The assessee has accepted throughout the proceedings that there was change in share holding pattern by more than 51%. The decision on the issue of eligibility of the assessee to set off the brought forward losses was adjudicated on the basis of the above said facts originally presented by the assessee. Through this miscellaneous application, the assessee is bringing altogether a new fact, which has the effect of changing the position by 360 degrees. Further, as submitted by the Ld D.R, the same is a new fact, which was not available on r....