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2012 (10) TMI 743 - AT - Income TaxLong term capital gain - sale of shares – non-compete consideration over and above sale consideration - business income or capital gain - grievance of the assessee is that Learned Commissioner has erred in taking cognizance under sec. 263 of the Act and thereby modifying the order of Assessing Officer, directing him to treat a sum as a business income under section 28(va) of the Act - Held that:- Contract was for sale of shares - They have fixed the sales price and paid the consideration - Department had not said that shares were sold at a lower price then the one available in the open market. The shares were sold at the price for which acquirer had acquired the shares of more than 20% from the public in an open offer - According to the assessee, he has sold the shares for which he has offered capital gain to tax - assessee has sold only 19.55% share of the total holding. Priya Das Gupta has sold 14.68% share and in her case department has accepted the capital gain by adopting the price at Rs.190 per share. There is no allocation towards alleged "non-compete" - Assessing Officer has taken one of the possible views. He has not applied any incorrect provisions of law and, therefore, the amount of Rs.1 7,72,17,484 cannot be treated as business income under sec. 28(va) of the Income-tax Act, 1961 as received for non-compete fees - Assessing Officer has rightly treated it as a part of long term capital gain - appeal of the assessee is allowed
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