TaxTMI 
TaxTMI 
2020 (12) TMI 592
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....as as follows: - 9. Considered the rival submissions and material placed on record. We notice that the Coordinate Bench in its order has set aside the findings of Ld. CIT(A) by observing that the share application money subscribed by the assessee is a receivable amount in case such shares were not allotted and the bench relied on S.R. Thorat Milk Products (P) Ltd. of Pune Bench decision, wherein it held that share application money is not a capital asset or cannot equate with share capital. However, we notice that the Hon'ble Jurisdictional High Court in the case of CIT V/s Siemens Nixdorf Information Systems Gmbh has considered the loan given to it subsidiary, even though a receivable amount. as a capital asset u/s 2(14) of the Act. Admittedly, the aforesaid decision of Hon'ble Jurisdictional High Court was not cited at the time of hearing of appeal. However, the Hon'ble Supreme Court in the case of ACIT V/s Saurashtra Kutch Stock Exchange Ltd. (supra), has held as under: - XXXXX XXXXX XXXXX 10. Respectfully following the above decision, we are of the considered view that the issue raised in the appeal has to be decided keeping in view the decision of Hon'ble Jurisdictiona....
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....019 partially allowed the appeal by observing that though losses arising out of transfer of equity shares and preference shares would be allowable to the assessee but share application money could not be considered as Capital Asset within the meaning of Sec.2(14) of the Act. Reliance was placed on the decision of Pune Tribunal in S.R. Thorat Milk Products (P) Ltd. while arriving at such a conclusion. However, as already enumerated by us in preceding para-1, the assessee, by way of its MA, brought to the notice of the bench that the facts would be squarely covered by the binding decision of Jurisdictional High Court rendered in CIT V/s Siemens Nixdorf Information Systems Gmbh. Finding strength in the said plea, the order was recalled for limited purpose. Accordingly, at this point of time, we are only concerned with determination of question whether share application money as transferred by the assessee would constitute capital asset within the meaning of Sec. 2(14) of the Act or not? The answer to the same would determine assessee's eligibility to claim set-off of these losses as arising out of transfer of share application money to the other entities. 4. We find that the answer t....
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....e Respondent claimed the difference in the amount which was invested/ lent to SNISL and the consideration received when sold / assigned to Siemens AG as a short-term capital loss. However, the Assessing Officer while completing the assessment on 30th March, 2005 disallowed the short-term capital loss. This on the basis that the amount of Rs. 90 lakhs Euros lent by the Appellant to its subsidiary SNISL, was not a capital asset under Section 2(14) of the Act and also no transfer in terms of Section 2(47) of the Act took place on assignment of a loss; (ii) Being aggrieved with the order dated 30th March, 2005, the Respondent carried the issue in appeal to the Commissioner of Income Tax (Appeals) [CIT(A)]. By an order dated 14th March, 2011, the CIT(A) did not accept the Respondent's contention that the amount of Rs. 90 lakhs Euros lent to SNILS was a capital asset and upheld the order of the Assessing Officer. However, held that although the assignment of a loss was a transfer under Section 2(47) of the Act, but it is of no avail, as the loan being assigned/ transferred, is not a capital asset; (iii) On further appeal, the Tribunal by the impugned order dated 31st March, 2016 al....
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....#39; as in this case. Therefore, this appeal deserves admission. 5. We find that Section 2(14) of the Act has defined the word 'capital asset' very widely to mean property of any kind. However, it specifically excludes certain properties from the definition of 'capital asset'. The Revenue has not been able to point out any of the exclusion clauses being applicable to an advancement of a loan. It is also relevant to note that it is not the case of the Revenue before us that this amount of Rs. 90 lakhs Euros was a loan/ advance income of its trading activity. 6. The impugned order of the Tribunal has considered the meaning of the word 'property' as given in the context of the definition of asset in the Wealth Tax Act to hold 'property' to include every interest which a person can enjoy. This was extended by the Tribunal to understand the meaning of the word 'property' as found in the context of capital asset under Section 2(14) of the Act. The Revenue has not been able to point out any reasons to understand meaning of the word 'property' as given in the Section 2(14) of the Act differently from the meaning given to it under Section 2(e) of the Wealth Tax Act, 1957. This....