TMI Blog2020 (4) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... ndeed is an Indian company which was duly registered with ROC, Kolkata since year 1981 and, therefore, is an Indian Company. We note that the remand report of the AO called for by the Ld. CIT(A) does not controvert this fact - basic premise on which the AO has made the addition fails and the Ld. CIT(A) is right in his conclusion that M/s. TUIHL is an Indian Company and its equity shares were in fact sold by the assessee. CIT(A) has noted the submission of the assessee that M/s. TUIHL is an Indian company and since the equity shares of the company s share was held for more than twelve months it has to be treated as a capital asset and the indexation benefit was available on the said asset. For that Ld. CIT(A) relied on section 2(29A), 2(4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee s appeal for AY 2008-09. However, it is noted that the revenue preferred a Misc. Application being M.A. N9o.156/Kol/20-19 against the order of the Tribunal dated 31.12.2018 wherein revenue raised a ground that the Tribunal while adjudicating the appeal considered both ground nos. 3 and 4 together without adjudicating ground no.4 specifically. In the light of the same, the Tribunal vide order dated 22.11.2019 was pleased to recall the decision in respect of ground nos. 3 and 4 for fresh adjudication. Hence, this appeal is again before us for the limited purpose of adjudication of ground nos. 3 and 4. 3. At the outset itself, the Ld. Counsel for the assessee Mr. Tibrewal contended that ground no. 3 had been adjudicated by the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 383 ]. The ld CIT(A), considering the facts of the assessee`s case, directed the assessing officer to work out the long term capital loss and short term capital loss. We are of the view that there is no infirmity in the order of ld CIT(A) in directing the AO to compute the long term/short term capital loss. That being so, we decline to interfere in the order passed by the ld. CIT(A), his order on this issue is hereby upheld and grounds of appeal raised by the Revenue is dismissed. So, we reiterate the order of the Tribunal and dismiss ground no.3 of the revenue s appeal. 4. Coming to ground no. 4 raised by the revenue which is as under: That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO, the specified period of three years was not completed for the said investments to be considered as Long Term Capital Gain and furthermore, indexation on foreign holdings which is not listed in stock exchange is not allowable. The AO also noted that the Ld. AR of the assessee has not produced any evidence of purchase and sale of these investments and such dividend income received from foreign companies are also not exempt to tax. The AO noted that no STT was paid on the aforesaid investments and so the benefit of special rate of tax, indexation deduction is also not allowable on foreign investments on which the Indian Income Tax Act and Rules do not apply, therefore, the AO concluded that income received on foreign transactions amountin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be accepted by the Ld. CIT(A). According to the Ld. AR, the stand of the AO itself is wrong and since there is no adverse remark against the documents of incorporation of M/s. TUIHL before the ROC, Kolkata from year 1981 this fact is not disputed and therefore, the question of treating M/s. TUIHL as a foreign company does not arise and the Ld. CIT(A) has rightly taken note of the facts and given relief to the assessee and, therefore, he does not want us to interfere with the order of the Ld. CIT(A). 8. We have heard rival submission and perused the material available on record. We note that the AO had proceeded to make the addition on the basis that the assessee had sold the shares of M/s. TUIHL which was a foreign company. However, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee had held the shares of M/s. TUIHL for more than twelve months and hence, the gain on sale of shares is to be treated as long term capital gain and in view of the provision of sec. 48 of the Act he was of the opinion that the assessee had correctly deducted the index cost of acquisition from the sale proceeds of the shares. The Ld. CIT(A) has noted that the assessee was holding the shares of M/s. TUIHL as investment and, therefore, the gain on its sale is to be taxed under the head long term capital gain. It is also noted that in the instant case assessee has not claimed special tax rate or exemption of long term capital gains. In the light of the above facts and law as discussed by the Ld. CIT(A) and in the light of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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