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TMI Blog2017 (12) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment order dated 28-03-2013 passed by learned Assessing Officer (hereinafter called "the AO") u/s 143(3) of the Income-tax Act, 1961 (hereinafter called "the Act"). 2. The brief facts of the case are that the assessee is a trust registered as charitable organisation with DIT(E), Mumbai u/s 12A and the trust has claimed it to be engaged in the field of education. During the course of assessment proceedings u/s 143(3) r.w.s. 143(2) , it was observed by the AO that the assessee has received donation of 100 shares of M/s Warden Polyclinic Private Limited attached to flat no. 6 at Ben Nevis Warden Road from the Estate of Late Dr. Hilla Banaji on 01-09-2009. The said shares were claimed to have been sold on 04-09-2009 for Rs. 2,00,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res. e) The agreement of sale of shares has already been submitted on record on 13th August 2012. f) No approval is required from the Charity Commissioner in respect of sales of shares. The property being Flat No. 6 at Ben Nevis at Warden Road does not belong to the assessee but belongs to the Warden Road Polyclinic Private Ltd. by virtue of the deceased holding shares in the said Polyclinic she has a right to use the said flat for the purpose of profession. g) The books of accounts were produced before you during the last assessment proceedings. However the same is being produced you again. h) Copies of acknowledgement of returns of income of the trust for the year 2006-07 to 2009-10 are attached. All the returns are filed in y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the assessee that it received corpus donation of 100 shares of Warden Road Polyclinic Private Limited, with a right to occupy flat no 6 at Ben Nevis , Warden Road, Mumbai and hence section 13(1)(d) is not applicable is not acceptable. It was claimed by the assessee that the said shares were received as corpus donation on 01- 09-2009 which were sold on 04-09-2009 and sales proceeds were invested on 24-09-2009 in the residential flat no 802 B Wing , Orchid Towers at Mumbai Central , Mumbai-400008. The assessee has claimed exemption u/s 11(1A)(a) of the Act for AY 2010-11 . The learned CIT(A) held that Section 13(1)(d) were violated because shares were held for 4 days from 01-09-2009 to 04-09-2009, which is hit by a bar u/s 13(1)(d)(i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m/2013 dated 11-1-2017. He would rely on Section 11(5) and 13(1)(d) . The learned counsel of the assessee would rely on the decision of Hon'ble Gujarat High Court in the case of CIT v. Sahitya Trust (1993) 203 ITR 349(Guj.HC) and decision of Hon'ble Calcutta High Court in the case of CIT v. Birla Charity Trust , 170 ITR 150(Cal. HC). It was submitted that through holding of shares, the assessee held control in flat and that was the only reasons for holding shares. Our attention was drawn to Section 2(47)(vi) whereby transfer of shares in co-operative society or company has an effect of transferring immovable property and hence it was claimed that shares are nothing but immovable property. It was submitted that shares were probated in the ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e organisation with DIT(E), Mumbai u/s 12A and the trust has claimed to be engaged in the field of education. The assessee has claimed that it has got donation of 100 shares of M/s Warden Polyclinic Private Limited attached to flat no. 6 at Ben Nevis Warden Road,Mumbai from the Estate of Late Dr. Hilla Banaji which was transferred in its name on 01-09-2009. It is claimed that the will was executed by donor Dr. Hilla Banaji on 06-09-1995 in favour of the assessee and she died on 02- 08-1996. It was submitted that probate of will was obtained on 27-12-1996 in favour of the assessee from the Court. It was submitted that Section 12A registration was obtained by the assessee on 05-04-1997. The said shares were transferred in favour of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. It is also not emanating from records as to the reasons for not transferring of shares in favour of the assessee for last 14 years and whether any litigation was going on w.r.t. these shares. It is also not emanating from records as to the control exercised by the assessee over the immovable property being flat no. 6 at Ben Nevis Warden Road , Mumbai through holding of 100 shares of the said company M/s Warden Polyclinic Private Limited .These propositions are no doubt relevant proposition for adjudicating the dispute between rival parties and fastening of tax liability on the assessee. Thus, keeping in view factual matrix of the case and in the interest of justice, we are inclined to set aside and restore this matter back to the file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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