9911796707
TMI Blog2022 (1) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... anation 2 to section 2(47) of the I.T. Act 1961 was applicable w.e.f. 01/04/1962. 2. That Ld. CIT(A) has erred in law and on facts in deleting the addition made on account of short term capital gain on transfer of shares by ignoring the actual transfer of capital asset during the previous year relevant to the assessment year 2009-10, without appreciating the fact that assessee has admitted the fact of transaction in respect of registration of the equity shares on transfer in the books of the company ATS Estate (P) Ltd. in compliance to the terms of MOU between assessee and other co-promoters. 3. That Ld. CIT(A) has erred in law and on facts in considering the short term gain to be a long term gain, without appreciating the fact that the transfer of shares is complete between transferor and the transferee in terms of amended provisions of section 2(47) of the I.T. Act 1961. 4. That Ld. CIT(A) has erred in law and on facts in holding that there was only a transfer of "Controlling Interest", ignoring the admitted fact that there was a transfer of 99,66,183 shares of ATS Estate (P) Ltd. to M/s. IL&FS Realty Fund and IIRF Holding XY Limited during the F.Y. 2008-09 which constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.2008. Further, it was stated that the assessee had received money under a conditional agreement and therefore, the shares were not absolutely and forever transferred to M/s. IL&FS Trust Company Ltd. and IIRF Holdings Ltd. Accordingly, no calculation on account of capital gain had been made for this transaction. However, under the abundant precaution and to avoid penal interest, the assessee had paid a sum of Rs. 5.75 crores as income tax and that was claimed as refund. Thereafter, the Assessing Officer after perusing the agreement called for further information from the assessee. The information so called was supplied to the Assessing Officer. The Assessing Officer after having received the reply, issued another notice dated 30.11.2011, thereby sought further information and cautioned the assessee that in the event of not furnishing convincing and satisfactory reply to the queries, he would compute the capital gain at Rs. 39,99,00,000/- on transfer of shares after adopting sale consideration of Rs. 40 crores less cost of acquisition of Rs. 1 lac. In response to the notice, the assessee filed another reply which was not found to be satisfactory by the Assessing Officer and procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Estates Pvt. Ltd. are not sufficient to fetch net realizable value of Rs. 150 crore for Mr. AKS (The assessee), then GA & AT would transfer further shares of ATS Estate Pvt. Ltd. to AKS. * Clause 7 of MOU deals with payment by AKS to ATS infrastructure Ltd. at decided price of Rs. 18.30 per share in respect of transfer of shares which in turn were sold by AKS. ......................... Clause 8 deals with next step of transfer of shareholding in ATS infrastructure Ltd. & other companies to GA&AT. .......................... Further, MOU dated 03.03.2008 contain following terms;- * Transfer of 3 Crore shares to be completed by 07.03.2008 (as per MOU) * Realize exit amount of Rs. 150 Crore by 31.05.2008 (Refer MOU Clause 3- pg 3) * If failed (till 31.05.2008)- 12% per annum increase on the balance left till 31.08.2008.(refer MOU clause 5) * If failed till 31.08.2008- 24% per annum (post 31.08.2008) (refer MOU clause 5) * If failed till 31.03.2009-AKS to sell shares of investor of his choice. (refer MOU Clause 5 & 6) .......................... II. Share Purchase Agreement dated 03.03.2008 between Mr. Getamber Anand, Mr. Ashwani Talwar and Mr. Anil Saha(the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a transferred 1191949 equity shares to IL&FS Trust Co. Ltd. and 7874234 equity shares to IIRF Holding XV Ltd. This fact has been confirmed by M/s. ATS Estate (P) Ltd. in response to notice under section 133(6) of the act. 6. The facts above clearly highlight that there is no dispute on the transfer of 90 lakh odd shares and the entire sale consideration was also received by the seller. Thus, it is a case well covered by section 2(14) and 2(47) of the act. CIT(A) order has laid emphasis on the aspect of real commercial object to achieve transfer of controlling interest and considered transfer of controlling interest as capital asset. Since the controlling interest of ATS was not transferred, therefore, Ld. CIT(A) held it to be a case of non-chargeability of capital gain. 7. It is prayed that order of Ld. CIT(A) is without merit as it fails to meet the scheme of the act to charge tax on transfer of shares which is the factual position in this case. So, the share holding which in itself is in the nature of capital asset and its transfer is clearly covered under section 2(47) of the act. 8. Section 2(14) of the act reads as under;- 14) "capital asset" means- (a) property of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to in item (a) and which has a population of more than one lakh but not exceeding ten lakh; or (III) not being more than eight kilometres, from the local limits of any municipality or cantonment board referred to in item (a) and which has a population of more than ten lakh. Explanation.-For the purposes of this sub-clause, "population" means the population according to the last preceding census of which the relevant figures have been published before the first day of the previous year; (iv) 6 per cent Gold Bonds, 1977, or 7 per cent Gold Bonds, 1980, or National Defence Gold Bonds, 1980, issued by the Central Government; (v) Special Bearer Bonds, 1991, issued by the Central Government; (vi) Gold Deposit Bonds issued under the Gold Deposit Scheme, 1999 or deposit certificates issued under the Gold Monetisation Scheme, 2015 notified by the Central Government. Explanation.-For the removal of doubts, it is hereby clarified that "property" includes and shall be deemed to have always included any rights in or in relation to an Indian company, including rights of management or control or any other rights whatsoever; 9. Section 2(47) of the act reads as under;- (47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transaction itself was in dispute and subjected to arbitration proceedings, any transfer of shares can not be construed to find and could not be subjected to capital gain tax in the year under consideration. He submitted that the Ld. CIT(A) was justified in deleting the addition. He submitted that transfer of shares by the assessee cannot be construed as part performance of the contract. Under the facts and circumstances of the present case, the entire terms and condition ought to be read as a whole. He submitted that the Assessing Officer failed to appreciate the fact that the agreement to transfer of shares was conditional. He failed to take note of the fact that transfer could be construed as complete on happening of a particular event. And in the present case, serious dispute related to transaction in question arose that culminated into arbitral proceedings between the parties. He took us through the judgement of Hon'ble Delhi High Court in the case of Getamber Anand & Anr. vs. Anil Kumar Saha (supra). He submitted that one of the prayers before the Hon'ble High Court was that MOU itself was void being violative provision of section 297 of the Companies Act, 1956. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iguity about the fact that transfer of the capital asset indeed took place in F.Y. 2008-09 because all the statutory ingredients for assessment of income arising from transfer of capital asset were fully present in the assessee's case. In AO's opinion shares of ATS Estates Pvt. Ltd. constituted capital asset within the meaning of See 2(14). In the statutory records of ATS Estates Pvt. Ltd. entries were present by which it was established that shares of that company were first transferred in the assessee's name from ATS Infrastructure Ltd. and thereafter in May 2008 shares were transferred in the names of IL&FS Reality and IIRF Holdings XIV Ltd. The entries in statutory records established that a legally valid "transfer" of a capital asset took place for a valid consideration and which the assessee received from the transferees of the shares. The AO therefore concluded that all the statutory conditions for assessment of capital gain were satisfied by the transactions which the assessee conducted during the F. Y. 2008-09 and therefore there was no escape from assessment of capital gains in assessee's hands in A.Y. 2009-10. The facts narrated by the AO In the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. In terms of the scheme proposed by the continuing promoters it was agreed that 300 lacs shares held by ATS Infrastructure Ltd. in A TS Estates Pvt. Ltd. would be first transferred to the assessee for a price @ Rs. 18.30 per share. After the shares were so transferred all 3 promoters were to take steps to procure appropriate investor or investors who would pay higher price for these 300 lacs shares to the assessee so as to enable him to realize the agreed consideration provided in the MoU dated 03.03.2008. It was the understanding between the promoters that the price realized by the assessee from sale of 300 lacs shares of ATS Estates Pvt. Ltd. would be treated by him as discharge of continuing promoters' obligation of paying consideration for relinquishing on his 1/3rd controlling interest in the ATS Group. It appeared from the transactional documents on record that in terms of scheme devised by the promoters, a Share Purchase Agreement dated 03.03.2008 was executed between ATS Infrastructure Ltd., A TS Estates Pvt. Ltd. and the assessee. In terms of the said agreement A TS Infrastructure Ltd. agreed, to sell 3 crores shares held by that company in ATS Estates Pvt. Ltd. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re agreed to be achieved and/or performed by the Promoters and companies of ATS Group so as to enable the real estate funds to earn pre agreed rate of return on the capital subscribed by them. The said agreement further provided that promoters of ATS group as also the companies belonging to the group would be under obligation to reacquire or repurchase the shares subscribed by the said 2 funds at a price which was to be arrived at on a pre determined pricing formula assuring the payment of pre agreed rate of return on investment. The Share Purchase Agreement under which the assessee sold 90,66,383 shares was liable to be governed by the covenants put in place earlier in the agreement dated 23.07.2007. A careful scrutiny of these agreement therefore showed that even though 2 real estate funds acquired equity shares of ATS Estates Pvt. Ltd. yet, the framework agreement between the parties showed that the conditions contained therein imposed obligations on the promoters of ATS Group to ensure buy back of shares from the real estate funds in the manner and the time frame predetermined. The terms and conditions of the agreement dated 23.07.2007 indicated that even though the real estate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equity capital of a company. It is for this reason the equity share holder enjoys right to vote; right to receive dividend and right to participate in the surplus of the company. An equity share holder cannot expect to earn predetermined or predefined return on his investment nor is he entitled to the return of capital. In the present case however the terms & conditions explicitly spelt out that 3 promoters of A TS group as also ATS Infrastructure Ltd. and ATS Promoters & Builders Pvt. Ltd. had jointly assured 2 real estate funds that against shares acquired by them in ATS Estates Pvt. Ltd. they would be paid assured rate of return on the funds invested and they were also assured that the shares so acquired by them would be repurchased within an agreed time frame and at a price which would assure them not only return of investment but also assured payment of return on funds invested at a pre-agreed rate. The agreements therefore indicated that though in terms of agreement dated 08.04.2008, two funds acquired shares of ATS Estates Pvt. Ltd.; in reality, the entire arrangement was put in place to enable the continuing promoters to pay to the assessee the sum agreed under the MoU date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that 2 real estate funds acquired shares of ATS Estates Pvt. Ltd. subject to various covenants contained in the Agreement dated 08.04.2008 as also in the earlier agreement dated 23.07.2007. The said agreement provided several covenants which were to be fulfilled by the promoters including the assessee at future specified dates. It therefore appeared that the shares of A TS Estates Pvt. Ltd. were not purchased by the funds on out right basis but the shares were purchased on the precondition that the promoters of ATS Group and/or ATS Infrastructure Ltd. would buy back the very same shares on predetermined terms and at the price to be arrived at on predetermined pricing formula. The facts on record therefore established that the payments made by 2 real estate funds to the assessee although apparently resulted in transfer of shares in their favour yet in reality such transaction was just one step, out of the several preconceived and preordained steps agreed to be taken by the promoters of ATS group for acquiring assessee's controlling interest which in law was a capital asset in its own right and which the assessee had agreed to transfer to the remaining 2 promoters on terms prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred by ATS Infrastructure Pvt. Ltd. to the assessee who in turn transferred the same to 2 real estate funds who provided finance to the promoters to enable them to discharge their obligation arising under the MoU dated 03.03.2008. The terms of the agreements dated 03.03.2008 and 08.04.2008 clearly showed that an interim arrangement of raising funds for the promoters was put in place where under the 2 funds purchased shares of ATS Estates Pvt. Ltd. from the assessee. In determining the true tax effect of the transaction therefore intermediate steps taken by the promoters for raising requisite funds could not be taken into consideration. Raising of Rs. 40 crores was one of the step taken by the co-promoters of ATS group and it was not an end itself. In my opinion in a preordained scheme of arrangement, sale of 90 lacs shares by ATS Infrastructure Ltd. to the assessee and thereafter by the assessee to the 2 real estate funds being one of the intermediate step; that in itself did not constitute independent commercial or real transaction. The said transaction could be considered only as a mean or tool to achieve the real objective of transferring the assessee's controlling interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest. It was assessee's controlling interest in the ATS group which was the real subject matter of transfer by the assessee in favour of remaining 2 promoters at and or a consideration of Rs. 150 crores. The controlling interest was a valuable right and constituted capital asset within the meaning of Sec 2(14) of the Act. Since the promoters did not have ready funds to acquire the said asset a pre ordained scheme was devised by the promoters which was to be executed through series of transactions to be carried out through intermediate companies such as ATS Infrastructure Ltd. and ATS Estate Pvt. Ltd. etc. However the ultimate object which the parties desired to achieve was transfer of assessee's controlling interest in the ATS Group. In order to achieve this object the assessee along with other 2 promoters proposed to execute series of preordained transactions so that the agreed consideration of Rs. 150 crores could be received by the assessee. In the context of the preordained scheme of arrangement 90 lacs shares were transferred by ATS Infrastructure Ltd. to the assessee and then by the assessee to 2 real estate funds. However even the purchase of these shares by 2 real ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serious disputes as arising between the parties in connection with the Memorandum of Understanding dated 03.03.2008 which contended into invocation of the arbitration clause and thus the issue of MOU was subjected to the arbitral proceedings by the parties and an arbitral award dated 04.03.2017 was delivered by the Hon'ble Arbitral Tribunal constituted by a Sole Arbitrator, Dr. Justice Mukandkam Sharma, former Judge of Hon'ble Supreme Court of India in the matter numbered as Arbitration Case No. 9/2012 and captioned as "Sh. Anil Saha v. Ashwani Talwar and Anr". Ld. Arbitrary Tribunal had directed the other Directors of the company namely, Sh. Getambar Anand and Sh. Ashwini Talwar to pay jointly and severally a sum of Rs. 110 crores alongwith interest @ 12% per annum from 31.05.2008 till the date of the award. The Arbitral Tribunal had also awarded interest at the rate of 12% per annum from the date of the award till the date of payment and in the event the payment was not made within a period of 120 days from the date of the award. Sh. Getambar Anand and Sh. Ashwini Talwar were made liable to pay interest @ 15% per annum from 121st day till the day of receipt of the outsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Private Limited from AKS, either in a single transaction or in tranche, at such value(s) that AKS shall be able to realize a minimum net amount equivalent to his complete Exit Amount of Rs. 1,50,00,00,000 after deducting the amount of Consideration from the amounts realized by sale of such shares of ATS Estate Private Limited to such investor(s) (For the purpose of clarity it shall be noted that any tax implication arising out of such transaction/transactions in the hands of AKS shall be AKS liability); 3. That GA and T shall, jointly and severally, ensure on a best efforts basis that AKS shall be able to realize a minimum net amount equivalent to his complete Exit Amount of Rs. 1,50,00,00,000/- after deducting the amount of Consideration from the amounts realized by sale of such shares of ATS Estate Private Limited to such investor(s) on or before May 31, 2008; 4. That in order to ensure that AKS shall be able to realize a minimum net amount equivalent to his complete Exist Amount of Rs. 1,50,00,00,000 (and further enhanced amounts as per Clause 5 (with penalty) and Clause 6 (fair market value) herein below) after deducting the amount of Consideration from the amounts reali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he shares of ATS Estate Private Limited to any investors(s) of his choice and GA and T shall have no objection to such sale of shares and GA ad T shall provide full assistance and cooperation to AKS in this regard; provided however that AKS shall provide a first right of refusal to GA and T or their nominee(s) to purchase the aforesaid shares of ATS Estate Private Limited at fair market value before AKS transfers them to the investor(s) of his choice. GA and T assured that in order to ensure that AKS shall be able to realize a minimum net amount equivalent to his complete Exit Amount of Rs. 1,50,00,00,000 (and further enhanced amounts as per Clauses 5 and 6) after deducting the amount of Consideration from the amounts realized by sale of shares of ATS Estate Private Limited, ATS Infrastructure Limited shall transfer further shares of ATS Estate Private Limited to AKS if required and GA and T shall procure this action; 7. xxxx xxxx xxxx xxx 8. That AKS shall transfer his shareholding in ATS Infrastructure Limited and other Companies to GA and Tat nominal/par value in tranches in proportion to the amounts AKS receives from time to time out of his entire net Exit Amount of Rs. 1,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount equivalent to the exit amount of Rs. 150 crores, the respondent would be at liberty to sell the shares of ATS Estate Pvt. Ltd. to the investors of his choice. Since the petitioners had failed to procure the transfer of the balance 2.1 crore shares, the respondent was also prevented from exercising his rights under Clause 6 of the MOU. The Arbitral Tribunal also, after appreciating the evidence led by the parties, concluded as under:- "The respondents have failed to fulfill their obligation, firstly, to procure the shares and investor for the sale of balance shares and complete the sale transaction to enable the claimant to realize the entire exit amount. Secondly, there was a failure to procure and transfer the shares in favour of the claimant and provide full assistance, so as to enable the claimant to sell the same and realize the exit amount. Thus, the respondents are in breach of the MOU" 11. The Hon'ble Court decided the issue by observing as under:- 14. "This Court finds no infirmity with the aforesaid finding. The contention, that the petitioners were only required to ensure that the respondent realizes the exit amount on a best effort basis and, therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the award. Thus, it can be inferred that the Agreement between the parties did not attain finality during the year under consideration hence, the impugned transaction in part ought not to have been taxed in the year under consideration. In our considered view, the Agreement is to be a read as a whole, the transfer of shares under dispute cannot be read into isolation. Moreover, one of the challenge before the Hon'ble High Court was regarding legality of MOU dated 03.03.2008. It was categorically prayed that MOU was void being contrary to the provisions of section 297 of the Companies Act, 1956. Therefore, under the peculiarity of the facts where the legality and validity of Agreement was under challenge, we do not see any infirmity into the order of Ld. CIT(A) to the extent it is held that the transfer of shares cannot be subjected to capital gain tax in the year under consideration on the ground that the entire transaction has not fructified. 13. In the result, the appeal of the Revenue is dismissed. ITA No. 4952/Del/2013 Assessment Year 2009-10] 14. Now, we take up Revenue's appeal in ITA No. 4952/Del/2013 pertaining to Assessment Year 2009-10. The Revenue has raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ATS Infrastructure Ltd.) In the year 2008 the appellant Sh. Anil Kumar Saha with the consent of other two promoters i.e. Sh. Getamber Anand and Sh Ashwani Talwar decided to quit from ATS Group of Companies and agreed to transfer all his shares in various Group companies held by the appellant in favour of other two co-promoters Sh. Getamber Anand and Sh. Ashwani Talwar for a consideration of Rs. 150 Crores, Memorandum of Understanding of this affect was also entered into, copy of the MOU is placed on record. The ATS Infrastructure Ltd. were owning lot of land parcels and inventory in form of finished & unfinished apartments of its own or through its subsidiary companies but were short of liquid funds, therefore in order to pay the agreed amount, all the three promoters agreed to transfer certain shares of M/s. ATS Estates Pvt. Ltd.(out of the holdings of ATS Infrastructure Ltd.) to M/s. IL&FS Trust Co. Ltd. and IIRF Holdings XV Ltd. to generate the requisite funds. To generate funds in the hands of appellant Sh. Anil Kumar Saba, a mechanism was devised according to which first 3,00,00,000 shares of ATS Estates Pvt. Ltd. were agreed to be transferred by ATS Infrastructure Ltd. in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of share purchase is the part of earlier agreement dated 23rd July, 2007 between the Co-promoters Sh. Getamber Anand, Sh. Ashwani Talwar & Sh. Anil Kumar Saha, M/s. ATS Infrastructure Ltd. and M/s. ATS Estates Pvt. Ltd. wherein purchaser i.e. M/s. IL&FS Trust Co. Ltd. and IIRF Holdings XV Ltd. has invested in M/s. ATS Estates Pvt. Ltd. a sum of Rs. 105 Crores by way of subscription of Equity & Convertible Preference shares of M/s. ATS Estates Pvt. Ltd. (The copy of parent agreement dated 23rd July, 2007 is placed on record. 2. The investors i.e. M/s. IL&FS Trust Co. Ltd. and IIRF Holdings XV Ltd. have a call option and the promoters are under obligation to purchase the shares of investors on agreed price. 3. The promoters and promoters companies have agreed to buy back shares on a agreed price (based on certain IRR) from the investors after completion of a particular period. In case the promoters companies are unable to purchase the shares then the promoters will have to purchase individually. 4. The promoters and their companies represented M/s. IL&FS Trust Co. Ltd. and IIRF Holdings XV Ltd. that they need fund for the purpose of development of a Real Estate Project and gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, under abundant precaution and to avoid penal interest (if any leviable against him), the assessee has paid a sum of Rs. 5.75 Crores as Income-tax that has been claimed as refund herewith." In view of above, it is to be seen whether Section 2(47) and 45 of Income-tax Act, 1961 are applicable or not on the transfer of shares by transfer of 90,66,183 Equity shares of M/s. ATS Estates Pvt. Ltd. to M/s. IL&FS Trust Company Ltd. and IIRF Holdings XV Limited? Section 2(47) of the Income-tax Act, 1961 is attracted where there is a transfer of the Capital Assets by way of sale, exchange or relinquishment. In the present case, there is a transfer of shares from one person to other person but transfer/sales it not absolute within the meaning of the Sales of Goods Act, 1930. The Transfer of Property Act, 1882 and Indian Contract Act. Therefore, the provision of section 2(47) is not applicable in case of conditional sale/transfer. "Section 45 of Income-tax Act is attracted when there is an absolute sales/transfer without any further conditions from either side (i.e. Buyer and Seller) in respect of fulfillment of certain future obligations. In the present case, the transaction in que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meant given for the purpose of M/s. ATS Estates Pvt. Ltd. There are three transfers in the entire episode, one is of ATS Estates Pvt. Ltd. shares from ATS Infrastructure Ltd. to appellant and second from appellant to IL&FS Trust Co. Ltd. and IIRF Holdings XV Ltd. and third one is transfer of shares of ATS Infrastructure Ltd. out of his promoters holding by the appellant i.e. Sh. Anil Kumar Saha to Sh. Getamber Anand and Sh. Ashwani Talwar, the other co-promoters in equal proportions. And all these three transactions are inter-related, as is clearly expressed from the above stated facts. As the agreement of Exit of appellant was for a consideration of Rs. 150 Crores and he has only got Rs. 24 Crores uptill now. Hence, the agreement entered between the co-promoters has been partly performed only and for the balance performance the parties are in court (Company Law Board). Therefore the entire agreement of Exit is in dispute and the fate of the money received by the appellant is uncertain, so no taxability can be imposed on money received by him, because the money received by the appellant is lying in trust. In view of facts mentioned above, it is prayed that the assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee is apprehensive that any day or at any moment he will have to comply with the obligations agreed with M/s. IL&FS Trust Co. Ltd. and M/s. IIRF Holdings XV Ltd., as there is no escape route. However, the final deadlines to provide exit route to M/s. IL&FS Trust Co. Ltd. and M/s. IIRF Holdings XV Ltd. will expire on 30th of June, 2012 as provided in clause no. 17.5.2 of agreement dated 23rd day of July, 2007. 2. As far as the MOU between Co-promoters dated 08.04.2008 is concerned, Sh. Anil Kumar Saha withdrawn himself from the companies and resigned from the directorship from March, 2009, though he has stopped going to office of ATS Group of Companies from September, 2007 and in part compliance of MOU he has received Rs. 40 Crores as part of the exit amount in April, 2008 but the remaining part of the MOU has not complied with by the other co-promoters. Therefore the matter has been raised in the office of Company Law Board, the proceedings are going on. The details of hearing took place before the Company Law Board is placed on record. The appellant has also invoked the arbitration clause as provided in MOU and the appellant has also approached to Delhi High Court as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oup of companies was actually transferred. While assessing such income the AO will not only take into account the cash consideration but also the value of movable and immovable assets that will be received by the assessee in terms of MoU dated 03.03.2008. In terms of the above directions the AO shall revise the assessment of the A. Y. 2009-10............." 19. The moot question remains to be adjudicated whether Ld. CIT(A) was correct in holding that there was no transfer of capital assets within the meaning of section 2(47) of the Act. Therefore, the capital gain was not chargeable to tax in Assessment Year 2010-11. It is the case of the Revenue that Ld. CIT(A) failed to take note of the amended provisions of section 2(47) of the Act. The Authorized representatives of the parties have adopted the same arguments as in ITA No. 4745/Del/2012 pertaining to Assessment Year 2009-10. 20. As we have decided the issue of chargeability of capital gain tax in ITA No. 4745/Del/2012 [Assessment Year 2009-10] of the Revenue's appeal in favour of the assessee. Therefore, we do not see any reason to interfere into the findings of Ld. CIT(A), the same is hereby affirmed. The grounds raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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