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2015 (7) TMI 779 - ITAT DELHI

2015 (7) TMI 779 - ITAT DELHI - TMI - Sale of shares - assessee has sold shares purchased in ‘Stock Option Plan’- whether the transaction is to be treated as in the nature of long term capital gain or short term capital gain - Held that:- Assessee has filed his evidences before the revenue authorities for substantiating his claim before them and the revenue authorities has also gave their opinion which remained under appeal before the Tribunal, Hon’ble High Court and the Hon’ble Supreme Court of .....

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O with the direction to examine the issue in dispute de novo, after giving full opportunity to the assessee of being heard.

Appeal filed by the Revenue stands allowed for statistical purposes. - I.T.A. No. 5560/DEL/2010 - Dated:- 21-7-2015 - Shri H.S. Sidhu and Shri J.S. Reddy, JJ. For the Petitioner : Sh. J.P. CHANDRAKER, Sr. DR For the Respondent : S h. R.S. SINGHVI, CA ORDER PER H.S. SIDHU : JM This appeal by the Revenue is directed against the Order of the Ld. Commissioner of Inco .....

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the said capital gain as short term; (ii) holding that the AO had no further jurisdiction to decide the issue afresh and that the only direction from the Tribunal was for verification of dates of acquisition of bonus shares which is wrong on facts (a) as the AO made the assessment u/s 143(3)/254 solely as per the directions given by the Tribunal i.e. to verify the correctness of the dates of allotment of shares and to pass the consequential order, (b) date of allotment is not the same as that o .....

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ounds of appeal. 2. The brief facts of the case are that the assessee filed his return of income on 10.9.2004 admitting income of ₹ 1,46,44,703/-. The return was processed and subsequently selected for scrutiny assessment. During the course of assessment proceedings the AO noticed that the assessee has sold shares purchased in Stock Option Plan . On examination of the details filed by the Assesseee, the AO came to the conclusion that the same was assessable as Short Term Capital Gain amoun .....

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unal decision in the case of Alok Kumar vs. JCIT 13 SOT 706. Aggrieved with the aforesaid order, Revenue filed an appeal before the Tribunal and the Tribunal in its First round vide ITA No. 3557/Del/2007 (AY 2004-05) [wrongly mentioned as AY 2003-04 vide order dated 25.6.2008 has remitted the case to the file of the AO for verification of dates stated by the assessee. The Tribunal also observed that if dates of allotment of shares are found to be correct, the AO is directed to accept the claim o .....

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ieved with the Ld. CIT(A) order, the Revenue has come before the Tribunal again and in the Second round the Tribunal in ITA No. 5560/Del/2010 (A.Y. 2004-05) vide order dated 25.10.2011 has dismissed the order of the Revenue by confirming the action of the Ld. CIT(A). 2.2 Against the order of the Tribunal dated 25.10.2011, Revenue has filed the Appeal before the Hon ble High Court of Delhi in ITA No. 417/2012 vide order dated 15.7.2013 has remanded the matter back to the Tribunal for deciding whe .....

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4 has passed the following order:- Delay condoned. We do not find any reason to entertain this petition. The Special Leave Petition is, accordingly, dismissed. However, we clarify that while deciding the case, the Tribunal shall not be influenced by the observations made by the High Court in its impugned order and it shall decide the matter on the facts and merits of the case. 3. Pursuant to the judgment dated 3.7.2014 of the Hon ble Supreme Court of India, the case was heard before the Tribunal .....

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ong in holding that the AO had no further jurisdiction to decide the issue afresh and that the only direction from the Tribunal was for verification of dates of acquisition of bonus shares which is wrong on fact (a) as the AO made the assessment u/s. 143(3)/254 solely as per the directions given by the Tribunal i.e. to verify the correctness of the dates of allotment of shares and to pass the consequential order, (b) date of allotment is not the same as that of date of vesting. 5. On the contrar .....

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ed 5.12.2014. e) ACIT vs. Sh. Param Paul Uberoi (Delhi ITAT) ITA No. 4477/D/11 dated 13.4.2012. f) ACIT vs. Dr. Dhurjati Gupta [2010] 127 TTJ 356 (ITAT Hyd.) 6. We have heard both the parties and perused the relevant records, especially the orders of the authorities below and the submissions made by both the parties before us along with the order / judgment of the Hon ble Delhi High Court and the Hon ble Supreme Court of India. Now we find that the AO in the first round while completing the asse .....

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the Tribunal and Tribunal vide its order dated 25.6.2008 in ITA No. 3557/Del/2007 vide para nos. 5 to 7 has held as under:- 5. The Revenue is aggrieved. The only argument advanced on behalf of the Revenue by the Ld. DR was that the CIT(A) during the course of appellate proceedings erroneously admitted additional evidence in violation of Rule 46A(3) of I.T. Rules. Certain documents not filed before the AO were taken into account and relief allowed to assessee. No opportunity whatsoever was provi .....

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f bonus shares as per above document is as under:- Vesting Scheduled This grant is fully vested: Quantity Description Date 1,328 Vested on 7.15.1997 1,320 Vested on 1.15.1998 1,320 Vested on 7.15.1998 1,320 Vested on 1.15.1999 1,318 Vested on 7.15.1999 1,318 Vested on 1.15.2000 1,318 Vested on 7.15.2000 1,318 Vested on 1.15.2001 6. All the aforesaid shares were sold on 18.6.03. Thus, it is wrong on the part of the revenue to contend that the assessee earned short term gain or that additional evi .....

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k and have been reproduced above. During the course of hearing, the Ld. DR submitted that above dates are required to be verified by the AO. Ld. Counsel for the assessee Shri Singhvi was good enough to agree to the limited extent of verification by the AO of the dates of allotment of bonus shares. The matter for the above limited purpose may be remitted back to the AO. No other claim was made before us. In the light of stand of the parties, we remit the case to the file of the AO for verificatio .....

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ow considering overall facts of the case and evidence furnished by the assessee i.e. in the form of page 9 of the Paper Book and the above directions of the JCIT, R-47, the consequential order is passed. The assessee has intimated the date of exercise of option as 18.6.03 in the document produced. This date is taken as the date of allotment of shares in question which were vested with the assessee as per dates mentioned in para 3 above. These shares are also sold on 18.6.03 itself and the sale p .....

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ppellant and various orders placed on record. There is no dispute that only ground before Tribunal was in respect of furnishing of additional evidence and the matter was restored for limited purpose of verification of dates referred to in annexure-9 which has been extracted in the order of the Tribunal itself. There has been no ground, submission or finding of the Tribunal on the merits of the case and the matter was restored by Hon ble Tribunal for limited purpose of verification to in annexure .....

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fact, the Hon ble Tribunal in the miscellaneous application itself has also made observation that merely because AO has allegedly misread the order of the Tribunal, there could be no case of modification or rectification of order of the Tribunal as direction of the Tribunal was specific and for limited purpose of verification of dates. After taking into consideration all the relevant facts, I am of the considered opinion that once the verification in respect of dates referred to in Annexure are .....

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r of the CIT(A) and accordingly AO is directed to accept the long term capital gain. 6.3 Against the order of the Ld. CIT(A), the Revenue has come before the Tribunal again and in the Second round the Tribunal in ITA No. 5560/Del/2010 (A.Y. 2004-05) vide order dated 25.10.2011 has dismissed the order of the Revenue by confirming the action of the Ld. CIT(A) by holding as under:- 6. We have heard the parties and have perused the material on record. The Tribunal remitted the matter by making the f .....

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produced above. During the course of hearing, the Ld. DR submitted that above dates are required to be verified by the AO. Ld. Counsel for the assessee Shri Singhvi was good enough to agree to the limited extent of verification by the AO of the dates of allotment of bonus shares. The matter for the above limited purpose may be remitted back to the AO. No other claim was made before us. In the light of stand of the parties, we remit the case to the file of the AO for verification of dates stated .....

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s restored only for the limited purpose of verification of dates referred to in Annexure 9, as reproduced in the Tribunal order. This is the vesting Schedule. The Tribunal did not either make any observation or record any finding apropos the merits of the case. The AO was only to carry out the verification of the dates referred to at page 9 of the Assessee s Paper Book as filed before the Tribunal. The correctness of the dates were not disputed in the order passed by the AO consequent on the rem .....

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g the grievance sought to be raised by the Department. 6.4 Against the order of the Tribunal dated 25.10.2011, Revenue filed the Appeal before the Hon ble High Court of Delhi vide ITA No. 417/2012. The Hon ble High Court of Delhi vide order dated 15.7.2013 has remanded the matter back to the Tribunal for deciding whether the findings recorded by the AO on the question of date of allotment are correct or not and directed the parties to appear before the Tribunal on 12.8.2013. 6.5 Against the judg .....

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