TMI Blog2013 (12) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... 48 of the Act. In the various statement recorded, none of the witnesses was questioned about the sale of shares by the appellant, much less any witness stating that the appellant had been paid any amount over and above the face value of the shares by the buyer of the shares - The AO could have summoned the persons who had negotiated the deal of purchase of shares from the appellant and ascertained whether any amount over and above the face value of the shares was paid to the appellant - there is not an iota of evidence to establish that the appellant received any money over and above the face value for the transfer of shares – Decided against Revenue. - I.T.A. No.394(Asr)/2010, ITA. No.427(Asr)/2010 - - - Dated:- 11-2-2013 - H. S. Sidhu And B. P. Jain,JJ. For the Appellant : Sh. Amrik Chand, DR For the Respondents : Sh. Padam Bahl, CA ORDER The Revenue has filed both these appeals against different orders of CIT(A), Amritsar, dated 08.09.2010 30.06.2010 relating to assessment year 2006-07. The issues involved in both the appeals are common, except variation in amounts, therefore, both the appeals are being taken up together and are being decided by this cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude, in ITA No.148(Asr)/2010 in the case of ITO Ward 1(1), Amritsar vs. Sh. Anil Kumar Kapoor, in ITA No.147(Asr)/2010 in the case of ITO Ward 1(1), Amritsar vs. Sh. Arun Kumar Kapoor and in ITA No.172(Asr)/2010 in the case of ITO Ward 5(2), Amritsar vs. Sh. Gurvinder Singh, dated 21st June, 2011, 21st June, 2011 12th Dec., 2011 respectively. He has also filed copies of these orders in the shape of small paper book alongwith his written submissions dated 19.09.2012. He further requested that the appeals filed by the Department may be dismissed accordingly. 4. On the contrary, the Ld. DR, Sh. Amrik Chand, relied upon the orders passed by the Assessing Officer. 5. We have heard the rival contentions and perused the relevant material available with us especially the orders passed by this Bench in ITA No.148(Asr)/2010 in the case of ITO Ward 1(1), Amritsar vs. Sh. Anil Kumar Kapoor, in ITA No.147(Asr)/2010 in the case of ITO Ward 1(1), Amritsar vs. Sh. Arun Kumar Kapoor and in ITA No.172(Asr)/2010 in the case of ITO Ward 5(2), Amritsar vs. Sh. Gurvinder Singh, dated 21st June, 2011, 21st June, 2011 12th Dec., 2011 respectively, mentioned above and we are of the view that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Jindal Stainless Ltd. reported at 122 TTJ (Del) 902, it was held that where the procedure laid down u/s 153C has not been followed, the assessment would not be valid and such defect was jurisdictional in nature and would not be cured by S.292B of I.T.Act. The Hon'ble Supreme Court in the case of Manish Maheshwari reported in 289 ITR 341, has held that if procedure laid down in Sec.158BD is not followed, the block assessment proceedings would be illegal. The provisions of section 153BC are exactly similar to the provisions of section 158BD under block assessment proceedings. As such the decision of the Supreme Court referred to above shall apply mutatis mutandis to the provisions of section 153C of the Act as well. Keeping in view of the decision of Supreme Court in the case of Manish Maheshwari and of ITAT Delhi Bench (supra) , the asstt. order passed by the AO by resorting to the provisions of section 148 of the Act is invalid and without jurisdiction. The AO has grossly erred in not issuing notice u/s 153C and in not making asstt u/s 153C read with section 153A of the Act. The provisions of section 153C specifically exclude the applicability of provisions of section 148 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment is of CIT vs. Rajiv Gupta (292 ITR 263), in which the question again related to the determination of fair market value of the shares of an unlisted company and the court held that where the Tribunal had made the valuation on the break up value method after excluding the miscellaneous expenditure incurred but not written off, no substantial question of law arose. In para 8 of its order, the Hon'ble Delhi High Court observed, "The view taken by the AO by relying upon the Bharat Hari Singhania (supra) may have been relevant for the assessment of wealth-tax but not for the assessment of Income Tax." Therefore, this case, in fact, goes against the view taken by the AO. The third decision relied upon by the AO is of Hon'ble ITAT, Mumbai in the case of DCIT vs. Ayesha Ashok Soni. This was a case, where for computation of capital gains, the assessee opted to adopt fair market value of the shares of an unlisted company as on Ist April,1981 as the cost of acquisition as provided u/s 55(2)((b)(i) of the I.T.Act, 1961. The Hon'ble ITAT held that the fair market value of shares of an unlisted company on a particular date could be computed on the basis of break up value method. The Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Today Homes and Infrastructure (P) Ltd. the additions were made on account of short term capital gain by adopting the value of shares at RS.1,525/- per share by break up value method. The ld. CIT(Appeals) Jammu with Hqrs at Amritsar in appeal Nos. 668/2008-09, 669/2008-9 and 670/2008-09 as per orders dated 29.06.2009, 29.0.6.2009 and 03.07.2009 respectively, deleted the additions. The Hon'ble ITAT, Amritsar Bench, Amritsar, vide order dated 30.12.2009 in appeal No.381(ASR)/2009, 380(ASR)/2009 and 382(ASR)/2009 respectively, upheld the orders of Ld. CIT(Appeals) Jammu with hqrs at Amritsar. Respectfully following the decision of Hon'ble ITAT, Amritsar (supra), the addition of RS.1,31,62,500/- made by the AO on account of short term capital gains is to be deleted. The grounds of appeal taken up on the issue of additions are allowed." 6. Keeping in view the aforesaid discussions alongwith the orders passed ld. first appellate authority on the issues in dispute, we are of the view that no interference is called for in the well reasoned orders passed by the ld. First appellate authority. Therefore, we uphold the impugned orders by dismissing the appeals filed by the Revenue. 7. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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