TMI Blog2015 (6) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... dy JJ. For the Appellant : Sh. B.R.R. Kumar, Sr. DR For the Respondent : S h. Ashwani Taneja, Advocate ORDER Per H.S. Sidhu : JM The Revenue has filed the present appeal against the impugned order dated 21/2/2011 passed by the Ld. Commissioner of Income Tax (Appeals)-XXII, New Delhi on the following grounds:- 1. The Ld. CIT(A) erred in law and on the facts and circumstances of the case in allowing the relief of ₹ 36,09,025/- out of short term capital gains on sale of 17500 shares Minda HUF Ltd. on the ground that the difference cannot be brought to tax unless. there is documentary evidence that there has been understatement of consideration. (sale price @ ₹ 105/- per share shown by the assessee as agreed between the parties without any basis) and. (sale price taken on fair value of shares computed by the AO @ ₹ 311.23 per share) 2. The Ld. CIT(A) erred in law and on the facts and circumstances of the case in allowing the relief of ₹ 56,26,156/- out of sale consideration taken by AO at ₹ 73,12,946/- being fair value of 23,597 shares of Minda HUF Ltd. against the sale consideration of ₹ 16,86,790/ - shown by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... af would be coming in this office on 30.12.2009 and requested for adjournment. But nobody attended the hearing and nor filed any written submissions on that date and lastly the AO on the basis of the documentary evidence filed by the assessee completed the assessment by making various additions vide order dated 31.12.2009 passed u/s. 144 of the I.T. Act. 3. Aggrieved with the above order, assessee filed an Appeal before the Ld. CIT(A), who vide impugned order dated 21.2.2011 partly allowed the Appeal filed by the Assessee. 4. Now the Revenue is aggrieved against the impugned order and filed the present appeal before the Tribunal. 5. At the time of hearing Ld. DR relied upon the order of the AO and reiterated the contentions raised by the Revenue in the grounds of appeal, especially the Revenue has challenged the impugned order by stating that the assessee remain non-cooperative before the AO as well as before the Ld. CIT(A), therefore, the assessee has not deserve for any leniency from this Bench and accordingly, Ld. DR has requested that the impugned order may be cancelled and the AO s order may be upheld. 6. On the contrary, during the hearing, Ld. Counsel of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en above to admit the additional evidences filed and since the paper-book and submission made on behalf of the appellant have been sent to the assessing officer for consideration, I find that no injustice is caused to the appellant. Ground No. 1 accordingly needs no further adjudication. 7.2 Ground no. 2 and 3 of the appeal relate to the assessment of income from short term capital gains and long term capital gains on sale of equity shares of M/s Minda HUF Ltd. As against the long term capital gains disclosed of ₹ 12,66,696/- on sale of 23597 shares, and subsequently revised to ₹ 13,15,712/-, the assessing officer has assessed the long term capital gains at ₹ 57,79,566/- and as per the remand report dtd 25-01-2011 has submitted that the long term capital gains required to be assessed at ₹ 69,41,868/-. Short term capital loss on sale of 17500 shares has been disclosed by the appellant at ₹ 12,64,168/-, which has been assessed as short term capital gains at ₹ 23,21,757/-. The assessing officer has submitted that the short term capital gains correctly work out to ₹ 23,44,857/-. The assessing officer was also of the view that the price paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red or disclosed by him. This burden may be discharged by the revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has not correctly declared or disclosed the consideration received by him and there is an understatement or concealment of the consideration in respect of the transfer. It was held that it was not sufficient to prove that the actual consideration declared was less than the fair market value of the asset; that it was further necessary that it must be shown that the consideration was not fully disclosed. I find that there is no evidence gathered by the assessing officer to prove that undisclosed consideration hands. There is no provision in the Act to substitute fair market value in place of the sale consideration. As opined by the Apex Court in the case of CIT v. Sivakami Co. P. Ltd. 159 ITR 71, Capital gains tax was intended to tax the gains of an assessee, not what an assessee might have gained. What is not gained cannot be computed as gained. All laws, fiscal or otherwise, must be both reasonably and justly interpreted whenever possible. Capital gains tax is not a tax on what might have been received or c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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