TaxTMI 
TaxTMI 
2018 (8) TMI 1487
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....tion of Rs. 5,18,68,407/- on account of disallowance of assessee's claim of long term capital loss. 3. Facts, as emanating from the records, show that during the year under consideration, the assessee has sold a property bearing No. A-8, Sector 68, Noida, Gautam Budh Nagar to M/s Q.A. Infotech Pvt Ltd [QIPL] for a total consideration of Rs. 9.60 crores. On such sale, capital gain of Rs. 3,48,39,960/- was declared. The AO found that the said capital gain was set off against the claim of loss of Rs. 5,18,68,407/- incurred on the sale of shares. 4. The AO examined the sequence of events and came to the conclusion that the purchase and sale of shares was nothing but a colourable device to generate loss to be set off against capital gain. ....
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....held as under: "dismissing the appeal that the Settlement Commission after considering the surrounding circumstances and applying the test of human probabilities had rightly concluded that the appellant's claim about the amount being her winnings from races was not genuine." 8. Now we will examine how the ratios laid down by Hon'ble Supreme Court [supra] apply on the facts of the case in hand. As mentioned elsewhere, the assessee sold property to QIPL. Though there was no formal agreement between the assessee and QIPL, the assessee first received Rs. 2 crores on 31.12.2010 and another Rs. 2 crores on 30.03.2011. Though for the second transaction, the date mentioned is 30.03.2010, but both the ld. AR and the ld. DR pointed ou....
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....ollaboration agreement with CRPL and the amount received from CRPL was returned back as under: Date Particulars Amount 20.03.2012 Shares Venkteshwara 375000 @ Rs. 82.50 3,09,37,500.00 30.03.2012 Oriental Bank of Commerce Being amount paid 5,90,62,500.00 TOTAL 9,00,00,000.00 15. Thus, the shares which were purchased for a consideration of Rs. 7.50 crores were sold/transferred for Rs. 3,09,37,500/- and the loss of sale of shares was generated. 16. At this stage, it is pertinent to note that the assessee paid a premium of Rs. 190/- on the shares of a company which was incorporated on 03.01.2011 and its first F.Y. ended on 31.03.2011 and the date of purchase of shares is 15.03.2011. Though the pr....
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....tion is sham or colorable and entered into with the sole intention of evading payment of tax is purely a question of fact. On appreciation of the material on record and thereafter keeping in mind the statutory provisions in particular, the charging section and the section under which the tax is exempted, the Court has to record the finding of fact. Unless the statutory provisions provide for exemption from payment of tax, the question of an assessee trying to take advantage of the said provision would not arise. Therefore, in each case, the question is, the way the assessee has avoided to pay tax relying on the statutory provisions is legitimate or not is to be considered by the Court. The Court has to bear in mind that it is wrong to encou....
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....of shares and disinvestment alone cannot be a criteria to hold the transaction is a sham transaction and the profit earned from sale of shares in WNL is real and loss incurred by the sale of shares is also real and though there was no bar for sale of shares at throw away price and sometimes, the businessman act in undue exercise and hasty and without any rationale any one of them is not sufficient to hold a transaction as sham transaction. But the cumulative effect of all these instances unequivocally points out the real intention behind this transaction and leads to a irresistible conclusion that this tax planning is done with the intention to avoid payment of tax on capital gains and it is not a case of legitimate tax planning but a devis....