TaxTMI 
TaxTMI 
2023 (8) TMI 819
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....538460 shares of M/s Axis IT&T Ltd. sold on 28/4/2008. The assessee company has declared the sale price of these shares at Rs. 13.50 per share on the date of transfer. However, the rate of share of M/s Axis IT&T Ltd. as on 28/4/2008(date of transfer) is Rs. 20.50 per share, since it a quoted share. The transfer of these shares was on off market transaction. The assessee was asked as to why the shares value on the date of transfer be not taken at Rs. 20.5 per share. To this, the assessee pleaded that in this case 61% of the shareholders of Ms Axis AT&T Ltd. came together and decided to sell their holdings to one party. A written agreement to this effect was executed on 11/1/2008. Since there is a bar for sale of shares in the stock exchange as per which only 5% of the shares, could be transacted in a single day. However, this plea does not hold water as this was an off-market transaction and hence there was no bar to transfer any number of shares as one liked. 4. The AO further noted that it is not clear as to how the assessee has calculated or adopted the value of shares of this company at Rs. 13.50 per shares as on 28/4/2008 when the transfer actually took place. That the value....
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....uent to this, resolution was to be passed to approve the transfer, necessary filings were to be made with the Registrar of Companies. The assessee further submitted that the advance of Rs. 40,13,824/- and balance payment of Rs. 1,62,88,660/- was received on 24/01/2008 and 29/04/2008 respectively after deducting transaction fee. The assessee vide letter dated 04/011/2011 has also filed the ledger of the purchaser in books. The assessee referred to the paper book page 109 where it was mentioned that the share price of M/s Axis IT&T Limited was Rs. 11.21/- per share on the date of signing the term sheet i.e. on 30/11/2007 and showing share price from the website moneycontrol.com. The assessee submitted a chart showing "payment as per agreement to sell" and "payment as per bank statement" which reads as under:- Payment as per Agreement to sell Payment as per bank statement Advance within 7 working days - 20% of the purchaser price pursuant to set off of transaction fee -i.e. Rs. 40,13,824/- refer pg. 56,57,76 Rs. 40,13,824 on 24 Jan. 2008 refer Pg 104 1st Instalment within 7 working days -10% of the purchaser price i.e. Rs. 20,76,921 refer Pg 56,57,76 Rs. 1,62,88,660 ....
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....Ward-53(5) Civic Center, New Delhi (2020] 84 ITR(T) 602 (Delhi - Trib.) viii. Enpro India Ltd. (2000] 113 Taxman 132 (Delhi) (Mag.)[12- 07-2000] ix. Premier Housing & Industrial Enterprises [2008] 24 SOT 236 (Chennai ITAT) [ III ] AO cannot step in the shoes of businessman and decide as to how affairs of business were to be run and wasteful or excessive expenditure was to be curtained i. S.A. Builders Ltd. vs CIT [2007] 288 ITR 1 (SC) ii. Woollen Mfg. Vs CIT [1969] 72 ITR 612 (SC) iii. CIT vs Dalmia Cement (P.) Ltd. [2002] 254 ITR 377 (Delhi) iv. CIT vs Oracle India (P.) Ltd. 11 taxmann.com 139 v. DCIT vs Manish Buildwell (P.) Ltd. [2011] 142 TTJ 749 (Delhi-Trib.) vi. DCIT vs Sophisticated Marbles and Granite Industries [2010] 3 ITR (T) 220 (Delhi) 9. Ld. DR relied upon the orders of the authorities below and requested to upheld the same. 10. After hearing the rival contentions and after perusing the case laws cited by the Ld. AR, we find that after taking sale consideration of Rs. 2,07,69,210/- (Rs. 13.5/- per share) as per date of agreement, the assessee declared long term capital gain on sale ....
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...., the Tribunal had held that the 'agreement for sale' entered into between the assessee-firm and the 'company' was a genuine transaction as the same evidenced a sale. This was essentially a finding of fact. The High Court had affirmed that finding. In that view, it could not be accepted that the transaction in question was exchange and not a sale, or it was merely a readjustment. Clause(1) of the agreement in specific terms said that 'the existing partner shall sell and the company shall purchase the shares and securities for a sum of rupees seventy-five lakhs'. Clause (3) of that agreement merely provided a mode of satisfaction of the sale price. The sale price fixed by the parties for the shares and the securities sold was Rs. 75 lakhs and nothing more. It could be that because of the allotment of the shares of the company in satisfaction of the sale price, the assessee-firm got certain benefits but that does not convert the sale into an exchange. Under section 12B(2), the amount of capital gains has to be computed after making certain deductions from the full value of the consideration for which the sale is made. What exactly is the meaning of the expression 'f....