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TMI Blog2011 (9) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... ucing the business loss claimed by the appellant on sale of shares by taking the share value at Rs. 1.52 per share instead Rs. 0.79 at which the appellant entered into the transaction." 3. The facts of the case are that during the year under consideration, the assessee sold 332942 shares of Market Creators Ltd. at the rate of Re.0.79/- per share on 10-2-2004. The AO noticed that the price of the shares as per BSE on 9-2-2004 was Rs. 1.52 per share. He therefore re-worked the loss claimed by the assessee on the sale of shares and reduced the loss disclosed by the assessee by Rs. 2,43,048/-. The same is sustained by the CIT(A), hence this appeal by the assessee. 4. We have heard both the parties and perused the material placed before us. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 48 of the Act does not have any reference to the market value but only to the consideration referred to in the sale deed, there is no error in the ultimate conclusion arrived at by the CIT(A) as well as by the Tribunal in that case. Hence, ratio of this decision of 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 market value of the asset for the purpose of computing the capital gain.. Regarding this contention that the asset in the present case is quoted shares and not landed property as in the case of decision of Bombay High Court or shares of Private L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certaining the fair market value of the assets in question as on the date of its transfer In the present case also, no provision in the Income tax Act has been brought to our notice as per which, market value can be considered for the purpose of computation of capital gain. Regarding the reliance placed by 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 Rs. 4,19,504/-, the loss assessed by the A.O. is of Rs. 28,23,396/-. The facts of the present case does not indicate that there was any case of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain in the present case, the A.O. shall work out the capital gain/capital loss on the basis of consideration received by the assessee and not on the basis of alleged market value of the shares sold by the assessee. We direct the A.O. accordingly." Admittedly, the facts of the assessee's case are identical because the assessee has sold the shares of the same company on the same date and in fact at a better price than the Allure Investments and Finance Pvt. Ltd. The assessee sold the shares at Re.0.79 per share while Allure Investments & Finance Pvt. Ltd. had sold the shares at Re.0.26 which was held to be reasonable by the ITAT. In view of the above, we respectfully following the above decision of the ITAT direct the AO to accept the loss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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