TMI Blog2007 (10) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... isallowing exemption under section 10( 35 ) claimed by the assessee. 2.On the facts and in the circumstances of the case, the Ld. CIT(A) erred in holding that all the conditions prescribed in section 94(7)." 2. The cross objection has been filed by the assessee late by 9 months and 15 days along with application for the condonation of delay. At the outset the ld. AR requested for the condonation of the delay. In respect of the cross objection, he pointed out that the assessee was advised by the earlier counsel not to file the cross objection. Subsequently, when the Counsel was sent to the assessee to advise them to file the cross objection on 28-2-2007 and immediately the assessee filed the Cross Objection before this Tribunal on 7-9- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore condone the delay and admit the cross objection filed by the assessee. ITA No. 2057 5. The only issue involved in both the grounds relate to whether the provision of section 94C are applicable to the case of the assessee or not. The brief facts of this appeal are that the assessee has purchased Units/Bonds of IL FS on 16-12-2003 and sold on 17-3-2004 while the unit/bonds of Sundaram Mutual Fund were bought on 26-12-2003 and sold on 29-3-2004. The dividends were declared in each of the case on 16-12-2003 and 26-12-2003 respectively. The case of the Assessing Officer is that since the assessee had bought the units/bonds within three months prior to the date of the declaration of the dividend i.e., record date and sold them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r units, and sells or transfers the same within a period of three months after such record dates, and the dividend or income received or respectively is exempt than the loss, if any, arising of such purchase or sale shall be ignored to the expendi- ture such loss does not exceed the amount of such dividend or interest, in the computation of the income chargeable to tax of such person. In view of the above it is evident that all the conditions prescribed in section 94(7) of the Income-tax Act are to be cumulatively satisfied. Since in the instant case the appellant has sold the securities/units after three months of the purchases/record date, its case is not covered within the purview of section 94(7) of the Income-tax Act. The Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dividend or income on such securities or unit received or receivable by such person is exempt then the loss if any arising to him on account of such purchase and sale of securities or unit to the extent of such loss does not exceed the amount of dividend or income received or receivable on such securities or unit shall be ignored for the purpose of computing his income chargeable to tax. In our opinion all the conditions as stipulated under clauses ( a ), ( b ) and ( c ) are to be complied with cumulatively if the securities/units will not be sold, no question of any profit or sale arise. The profit/loss can be sustained by the assessee only if there is purchase and sale of the securities. Dividend can also be received by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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