TMI Blog2015 (10) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the shares were sold at a price which were on the basis of a report of the Government approved valuer. The Commissioner of Income-tax (Appeals) has further given a finding that the decision in the case of McDowell and Co. Ltd. (1985 (4) TMI 64 - SUPREME Court) and the other case laws were not applicable to the facts of the case. He thus relying on the decision of the hon'ble apex court in the case of Union of India v. Azadi Bachao Andolan [2003 (10) TMI 5 - SUPREME Court ] held that the transaction of sale of shares in the present case cannot be considered as a sham or a device to void tax. Before us, the learned Departmental representative could not controvert the findings of the Commissioner of Income-tax (Appeals) by bringing any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), the Revenue is now in appeal before us and has raised the following ground : 1. The learned Commissioner of Income-tax (Appeals) has erred in law and on facts in allowing the claim of long-term capital loss (LTCL) arising on sale of shares of Suvik Hitek P. Ltd., amounting to ₹ 36,13,175, claimed by the assessee. 4. During the course of assessment proceedings, the Assessing Officer noticed that the assessee had sold immovable property and had earned long-term capital gain of ₹ 36,13,175. The long-term capital gains earned from the sale of immovable property was set off against the long-term capital loss of ₹ 55,19,009 arising from the sale of shares of Suvik Hitek P. Ltd. the Assessing Officer was of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f shares of Suvik Hitek P. Ltd. amounting to ₹ 55,19,009. It is noticed that so far the computation part of said capital loss is concerned, there is no dispute by the Assessing Officer as to quantum of shares sold and the cost of the shares. The question raised by the Assessing Officer is that according to him the shares were not transacted through any recog nised stock exchange and that according to him shares were transferred to the appellant's Hindu undivided family and thus to self and that, therefore, the transaction was not considered by him to be genuine. He has further stated that there was intention of evasion of tax. He has relied upon the decision of the Supreme Court in the case of McDowell and Co. Ltd. v. CTO [1985] 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 154 ITR 148 (SC). I have noticed that the shares were transferred to the Hindu undivided family of the appel lant's father which is a separate legal entity and that consideration for the same was received by the appellant from the said Hindu undivided family through banking channel. It is also noticed that the shares were sold at a price which was as per report of the Government approved valuer. Con sidering these facts there was no reason for the Assessing Officer to state that the shares were transferred to self or that it was not genuine. 5.3 Considering the evidences the appellant has rightly stated that when the transaction had taken place between two independent entities there was no question of considering the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of ₹ 55,19,009. The relevant ground of appeal is allowed. 6. Aggrieved by the order of the Commissioner of Income-tax (Appeals), the Revenue is now in appeal before us. 7. Before us, the learned Departmental representative took us through the order of the Assessing Officer and pointed to the various findings of the Assessing Officer and strongly supported his order. On the other hand the learned authorised representative reiterated the submissions made before the Commissioner of Income-tax (Appeals) and supported the order of the Commissioner of Income-tax (Appeals). He also submitted that the shares were transferred by the assessee to an Hindu undivided family of the assessee's father and therefore the finding of the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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