TMI Blog2011 (10) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... essee against the order of ld. CIT(A) dated 25.10.2010 for Asst. Year 2004-05 raising following grounds:- (1) The ld. CIT(A) has grossly erred in partly confirming the action of AO in reducing the business loss claimed by the appellant on sale of shares by taking the share value at ₹ 1.52 per share instead of ₹ 0.26 at which the appellant entered into the transaction. (2) The ld. CIT(A) has further erred in treating the loss on sale of shares as capital loss and not business loss as claimed by the appellant. (3) The ld. CIT(A) has failed in appreciating the evidences and submissions of the appellant while adjudicating the above grounds of appeal. (4) Initiation of penalty proceedings u/s 271(1) are not justified. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 25.3.2004 the price was 60 paise per share and that the assessee had adopted the rate of 26 paise per share on 10.2.2004 which was extremely fair. Without prejudice it was submitted that the average sale price between 3.2.2004 to 30.3.2004 was ₹ 1.15 per share which is to be considered for arriving at the business loss. It was thus prayed that the addition be deleted. Attention was also drawn to the decision of Apex Court in the case of CWT vs. Mahadev Jalan 86 ITR 621. 4. The ld. CIT(A) considered the facts of the case and submissions of the assessee and decided the issue by observing as under :- 4.3 I have carefully considered the facts of the case, the submissions of the appellant and the assessment order. Market Creato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hd/2010 Asst. Year 2004-05 vide order dated 5.8.2011 and in the case of Cura Finstock (P) Ltd. vs. ACIT in ITA No.3474/Ahd/2010 Asst. Year 2004-05 vide order dated 9.9.2011, wherein on identical facts and circumstances, the appeals of the assessees were allowed. Therefore, it was prayed that the order of ld. CIT(A) be set aside and the appeal filed by the assessee is allowed. 6. On the other hand, the ld. DR relied on the orders of authorities below. 7. After considering the rival submissions and going through the material placed on record, we agree with the submissions of the ld. counsel of the assessee that the issue is now covered by the decisions of the Tribunal in the cases of Allure Investments Finance (P) Ltd. (supra) and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Hon ble Gujarat High Court is this that for the purpose of working out capital gain, the sale consideration received by the assessee or accrued sale consideration has to be adopted because there is no reference in section 48 to the value of the asset for the purpose of computing the capital gain., Regarding this contention that the asset in the present case is quoted quoted and not landed property as in the case of decision of Bombay Court or shares of Private Ltd. Co., as in the case of ITAT order supra, we are of the considered opinion that it does not have any on the ratio of the judgment and the legal position. Legal position remains the same irrespective of the type of capital asset and we do not find any merit in this contention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. D.R. of the Revenue on the Judgment of Hon ble Apex Court rendered in the case of Mcdowell Co. Ltd. vs. C.T.O. (supra), we find that in that case, the issue involved was regarding legal tax planning or Tax avoidance. In the present case, we find that even after addition made by the A. O. of ₹ 4,19,504/-, the loss assessed by the A. O. is of ₹ 28,23,396/-. The facts of the present case does not indicate that there was any case of willful tax avoidance or tax evasion. Hence, in our considered opinion, the judgment of Hon ble apex court rendered in the case of Mcdowell Co. Ltd. vs. C. T. O. (supra) has no relevance in the present case because we find that in the present case, the reasons are also given for adopting lower pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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