TaxTMI 
TaxTMI 
2021 (7) TMI 759
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....tification for him not to have held that the loss suffered on the transfer of shares made did not represent long term capital loss. 3. That the learned CIT (A) in any case and without prejudice ought to have held that such a loss as suffered represents a loss which is an allowable business loss. 4. That the learned CIT (A) has misconceived the facts and has failed to appreciate that there being admittedly a transfer of shares made by the assessee company to HSIIDC, the transfer so made was made at market price. The finding of the learned CIT (A) that the transfer was not made at market price is misconceived and is based on no material. Nonetheless there was no justification not to have allowed the claim of long term capital loss suffered by the assessee. It is therefore prayed that it be held that the loss suffered ought to have been held as allowable and there was no justification to compute the loss at Nil. 3. Representatives of both the sides were heard at length. Case record carefully perused and with the assistance of the counsel we have considered the relevant documentary evidences brought on record in the light of rule 18 (6) of the ITAT Rules. ....
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....SIDC was that of company M/s. GRPL. It is true that the shares allotted by M/s. GRPL mismatched with the agreed percentage of shareholding. 10. Before us the counsel vehemently stated that allotment of shares by the company M/s. GRPL would have taken much more time since the company had to apply for increase in share capital with the Registrar of Companies and after obtaining approval in the general body meeting of the company. 11. It was strongly contended that any delay in issue of shares would have resulted into cancellation of the land allotted and postponement of loan granted. The counsel continued stating that in such case entire amount incurred by the company on the project would have become zero and in turn the said company M/s. GRPL would have to pay HSIDC amount of loan availed from them with interest and penalty thereon. 12. On such a situation as mentioned above, in order to avoid delay resulting in such huge loss to the assessee company and other share holders, it was considered proper to bear this loss on transfer of shares to HSIDC and accordingly the assessee transferred 1288438 shares to HSIDC and simultaneously M/s. Unitech Holdings Limited also transferr....
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.... transfer of a capital asset by a subsidiary company to the holding company, if - (a) the whole of the share capital of the subsidiary company is held by the holding company, and (b) the holding company is an Indian company: Provided that nothing contained in clause (iv) or clause (v) shall apply to the transfer of a capital asset made after the 29th day of February, 1988, as stock-in- trade; (vi) any transfer, in a scheme of amalgamation, of a capital asset by the amalgamating company to the amalgamated company if the amalgamated company is an Indian company: (via) any transfer, in a scheme of amalgamation, of a capital asset being a share or shares held in an Indian company. by the amalgamating foreign company to the amalgamated foreign company, if- (a) at least twenty-five per cent of the shareholders of the amalgamating foreign company continue to remain shareholders of the amalgamated foreign company, and (b) such transfer does not attract tax on capital gains in the country, in which the amalgamating company is incorporated; (viaa) any transfer, in a scheme of amalgamation of a banking company with a bank....
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....apital asset being a Shan: 0T shares held by him in the predecessor co-operative bank if the transfer is made in consideration of the allotment to him of any share or shares in the successor co-operative bank ^25[or to the converted banking company] Explanation-For the purposes of clauses (vica) and (vicb), the expressions "business reorganization", ^25["converted banking company",] "predecessor co- operative bank" and "successor co-operative bank" shall have the meanings respectively assigned to them in section 44DB; (vicc) any transfer in a demerger, of a capital asset, being a share of a foreign company, referred to in the Explanation 5 to clause (i) of sub-section (1) of section 9, which derives, directly or indirectly, its value substantially from the share or shares of an Indian company, held by the demerged foreign company to the resulting foreign company, if (a) the shareholders, holding not less than three-fourths in value of the shares of the demerged foreign company, continue to remain shareholders of the resulting foreign company; and (b) such transfer does not attract tax on capital gains in the country in which the demerged foreign ....
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....Securities Contracts (Regulation) Act, 1956 (42 of 1956):] Following clauses (viiac) to (viiaf) shall be inserted after clause (viiab) in section 47 by the Finance Act, 2021, w.e.f. 1-4-2022: (viiac) any transfer, in a relocation, capital asset h' the original fund to the resulting fund; (viiad) any transfer a shareholder or unit holder or interest holder, in a relocation, of a capital asset being a share or unit or interest held by him in the original fund in consideration for the share or unit or interest in the resultant fund. Explanation. For the purposes of clauses (viiac) and (viiad), - (a) "original fund" means a fund established or incorporated or registered outside India, which collects funds from its members for investing it for their benefit and fulfils the following conditions, namely: - (i) the fund is not a person resident in India; (ii) the fund is a resident of a country or a specified territory with which an agreement referred to in sub-section (1) of section 90 or sub-section (1) of section 90A has been entered into; or is established or incorporated or registered in a country or a specified territ....
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....Government; (viib) any transfer of a capital asset, being a Government Security carrying a periodic payment of interest, made outside India through an intermediary dealing in settlement of securities, by a non-resident to another non-resident. Explanation.-For the purposes of this clause, "Government Security" shall have the meaning assigned to it in clause (b) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956); (viic) any transfer of Sovereign Gold Bond issued by the Reserve Bank of India under the Sovereign Gold Bond Scheme, 2015, by way of redemption, by an assessee being an individual; (viii) any transfer of agricultural land in India effected before the 1st day of March, 1970; (ix) any transfer of a capital asset, being any work of art, archaeological, scientific or art collection, book, manuscript. drawing, painting, photograph or print, to the Government or a University or the National Museum, National Art Gallery, National Archives or any such other public museum or institution as may be notified by the Central Government in the Official Gazette to be of national importance or to be of renown throughout ....
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....any transfer of a capital asset to a company in the course of demutualisation or corporatisation of a recognised stock exchange in India as a result of which an association of persons or body of individuals is succeeded by such company Provided that - (a) all the assets and liabilities of the firm or of the association of persons or body of individuals relating to the business immediately before the succession become the assets and liabilities of the company; (b) all the partners of the firm immediately before the succession become the shareholders of the company in the same proportion in which their capital accounts stood in the books of the firm on the date of the succession; (c) the partners of the firm do not receive any consideration or benefit, directly or Indirectly, in any form or manner, other than by way of allotment of shares in the company; and (d) the aggregate of the shareholding in the company of the partners of the firm is not less than fifty per cent of the total voting power in the company and their shareholding continues to be as such for a period of five years from the date of the succession; (e) the demutual....
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....ear in which the conversion takes place does not exceed sixty lakh rupees; (ea) the total value of the assets as appearing in the books of account of the company in any of the previous years preceding the previous year in which the conversion takes place does not exceed five crore rupees; and (f) no amount is paid, either directly or indirectly, to any partner out of balance of accumulated profit standing in the accounts of the company on the date of conversion for a period of three years from the date of conversion. Explanation.-For the purposes of this clause, the expressions "private company" and "unlisted public company" shall have the meanings respectively assigned to them in the Limited Liability Partnership Act, 2008 (6 of 2009); (xiv) where a sole proprietary concern is succeeded by a company m the business carried on by it as a result of which the sole proprietary concern sells or otherwise transfers any capital asset or intangible asset to the company: Provided that- (a) all the assets and liabilities of the sole proprietary concern relating to the business immediately before the succession become the assets and liabil....
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.... the meaning assigned to it in clause (38) of section 10; (d) "mutual fund" means a mutual fund specified under clause (23D) of section 10; (xix) any transfer by a unit holder of a capital asset, being a unit or units, held by him in the consolidating plan of a mutual fund scheme. made in consideration of the allotment to him of a capital asset, being a unit or units, in the consolidated plan of that scheme of the mutual fund. Explanation. -For the purposes of this clause, - (a) "consolidating plan" means the plan within a scheme of a mutual fund which merges under the process of consolidation of the plans within a scheme of mutual fund m accordance with the Securities and Exchange Board of India (Mutual Funds) Regulations, 1996 made under the Securities and Exchange Board of India Act 1992 (15 of 1992); (b) "consolidated plan" means the plan with which the consolidating plan merges or which is formed as a result of such merger; (c) "mutual fund" means a mutual fund specified under clause (23D) of section 10." 18. In our considered view when the statute has provided specific provisions then the same have to be construed stric....