TMI Blog2023 (6) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 [ 2021 (3) TMI 1162 - ITAT PUNE ] had reversed the decision of the ld. CIT(A) that the performance guarantee should be excluded and further proceeded to hold that the performance guarantee should be benchmarked on par with financial guarantee. Thus this issue is set-aside to the TPO on the similar lines indicated in the order of the Tribunal supra. Selection of MAM - CIT(A) directing AO/TPO to adopt the internal TNMM as the most appropriate method for the purpose of benchmarking the international transactions of purchase and sale of pharma products from its AEs - HELD THAT:- Respectfully following the decision of this Tribunal in assessee s own case for earlier assessment year 2015-16 [ 2023 (2) TMI 568 - ITAT PUNE ] we remand the matter to the file of the AO/TPO to adopt external TNMM as the most appropriate method for the purpose of benchmarking the international transactions of purchase and sale of pharma products from its AEs. Thus, the ground of appeal partly allowed for statistical purposes. Determination and carry forward of loss arising on sale of shares sold to its another wholly owned subsidiary foreign company holding the same to be non-genuine - HELD THAT:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re as under: The assessee is a company incorporated under the provisions of the Companies Act, 1956. It is engaged in the business of manufacturing of Pharmaceutical Packages and providing research-driven packaging solutions and clinical supplies services to leading pharmaceutical companies. The Return of Income for the assessment year 2016-17 was filed on 28.11.2016 declaring a loss of Rs.45,98,46,394/-. The same was revised on 29.03.20218 declaring total loss of Rs.968,30,88,739/-. The said return of income was selected for scrutiny assessment. The assessee company also reported the following international transactions in its Form No.3CEB :- Sr. No. Nature of International Transaction Amount (in INR) Most Appropriate Method Method as per Form 3CEB 1. Purchase of pharma packaging material 20,10,09,489 CUP Transactional Net Margin Method ( TNMM ) 2. Sale of pharma packaging material (finished goods) 15,35,26,251 CUP TNMM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.51% 2 Jhaveri Flexo India Ltd. 4.35% 3 Positive Packaging Inds. Ltd. 6.00% 4 Ecoplast Ltd. 7.45% 5 Raj Packaging Inds. Ltd. 8.30% 6 Ess Dee Aluminium Ltd. 8.32% 7 Guardian Plasticote Ltd. Financials Not Available 8 Glory Polyfilms Ltd. Financials Not Available Date place 35th Percentile 3 6.00% Median 6.73% 65th Percentile 4 7.45% 5. The TPO computed the weighted average of PLI of comparables at 6.00% and the PLI of the assessee company was computed at (-)28.87%. Therefore, on the above basis, the TPO computed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the guarantee for performance, it does not fall within the definition of international transaction as defined under the provisions of section 92B of the Act. However, rejecting the above contention of the assessee company, the TPO had proceeded to benchmark the above international transactions by holding that the corporate guarantee and performance guarantee are treated as the international transactions and proceeded to benchmark at 1.75% of the value of the international transactions under CUP method and suggested TP adjustment of Rs.88,479,495/-. Thus, the TPO vide order dated 31.10.2019 passed u/s 92CA(3) suggested a total TP adjustments of Rs.22,76,78,495/-. 7. On receipt of the TPO‟s order u/s 92CA(3), the Assessing Officer passed a draft assessment order dated 31.12.2019, wherein, the Assessing Officer had made an addition on account of TP adjustment of Rs.22,76,78,495/- and rejected to take cognizance of the revised return of income, wherein, the assessee company sought to claim long term capital loss arising on sale of shares of BSPL, a subsidiary of Bilcare Singapore Pte Ltd., which is wholly a subsidiary company of the assessee company on the ground that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namely, Bilcare Singapore Pte Ltd. is 100% of the subsidiary of the assessee company and invested in the form of equity shares of the said company from the year 2002 to 2016 to the tune of Rs.529.72 crores. The details of investments in equity shares are available in page nos.818 and 819 of the Paper Book filed before us. The said abroad investments in the equity capital of the Singapore company is approved under automatic route by the Reserve Bank of India (RBI) and the same was intimated to RBI under the Foreign Exchange Management Act, 1973 in Form No.A-2 and Form ODI. Subsequently, the said subsidiary of the assessee company i.e. BSPL went into liquidation. The circumstances that led to the liquidation of the said company as explained before the Assessing Officer were set out by the Assessing Officer in para 3.3 of the assessment order. 9. For the sake of the present proceedings, we need not go into the circumstances that led to the liquidation of the Singapore company. Suffice to say that consequent to the creditors legal action against the said company a Suit was filed before the Hon ble High Court of Republic Singapore for recovery of dues from the BSPL, finally interim J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns :- (i) The claim for deduction of loss on sale of shares in the revised return of income is not valid in law, as the necessity for filing the revised return of income is not on account of any omission or wrong statement in the original return of income. (ii) The Hon ble High Court of Republic Singapore simply permitted the assessee the sale of 77,33,50,000 ordinary shares of BSPL without mentioning the consideration for sale of shares. Therefore, the Assessing Officer was of the opinion that the transactions of sale of shares in Singapore company is not by operational of law. (iii) The assessee company only sold the shares to its another wholly owned subsidiary, namely, Bilacare Mauritius Ltd. (iv) The Assessing Officer alleged that the assessee company had failed to furnish the information sought by the assessee in order to determine the fair market value of the shares in terms of provisions of Rule 11UA of the Income Tax Rules, 1962. 13. On an application made by the assessee company u/s 144(A) of the Act, the ld. Joint Commissioner of Income Tax gave the following directions :- (a) The loss on sale of shares of Rs.922 crores claimed in the revised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) CIT vs. Oswal Agro Mills Ltd., 197 Taxman 25 (Delhi). 16. However, the above-said claim was rejected by the Assessing Officer only on the ground that the claim for depreciation was not made either in the original return of income or in the revised return of income placing reliance on the decision of the Hon ble Supreme Court in the case of Goetze (India) Ltd. vs. CIT, 284 ITR 323 (SC). 17. Being aggrieved by the above additions, an appeal was filed before the ld. CIT(A) contesting all the above additions made by the Assessing Officer. The ld. CIT(A) considering the submissions made by the assessee company as well as following his predecessors order in assessee s own case for the assessment years 2013-14 and 2014-15 held that the transactions of corporate guarantee should be benchmarked at the rate of 1.75%. 18. As regards the performance guarantee, the ld. CIT(A) held that the performance of corporate guarantee does not come within the ambit and scope of international transactions as per the Explanation (i)(c) of the Act and, accordingly, held that performance guarantee cannot be subject matter of benchmarking of the international transactions by the TPO. 19. As re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term capital loss of Rs.922 crores arising on sale of shares of BSPL held by the assessee company is allowable as a long term capital loss, (iv) the depreciation on opening WDV block of assets under which the leased assets falls be allowed without reducing the amount of Rs.27,20,59,980/-, the Revenue is in appeal before us in ITA No.273/PUN/2021. 25. The assessee company also filed a Cross Objection in C.O. No.14/PUN/2021 challenging that the findings of the ld. CIT(A) that the long term capital loss arising on sale of shares of BSPL held by the assessee company, cannot be allowed as revenue loss. 26. First, we shall take up the assessee s appeal in ITA No.334/PUN/2021. ITA No.334/PUN/2021 By Assessee : 27. The assessee company raised the following grounds of appeal :- 1 General The Learned CIT(A)- 13 Pune erred in law and facts in partially confirming the additions made by learned DCIT, Central Circle 2(2), Pune (hereinafter as the AO ) to the taxable income (loss) of the Appellant, amounting to Rs.5,51,37,874. 2. Transfer Pricing- Corporate Guarantee (Addition Rs.5,51,37,874) 2.1 The learned I-T authorities erred in law and on facts in not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the ld. CIT(A) i.e. transaction of bank guarantees provided by assessee company should be benchmarked by adopting commission @ 1.75%, the assessee company is in appeal before us in the present grounds of appeal. 31. The issue of TP adjustments on corporate guarantee was decided by this Tribunal in assessee s own case for the assessment years 2013-14, 2014-15 and 2015-16, wherein, this Tribunal held that the transactions of corporate guarantee should be benchmarked by adopting 0.5% of value guarantee as increased by the expenditure actually incurred by the assessee company by furnishing such guarantee. The relevant portion of the order of this Tribunal (supra) is as under :- 8.2 Having heard the rival submissions and gone through the relevant material on record, it is seen that the issue of transfer pricing adjustment on corporate guarantee fee came up for consideration before the Tribunal in the assessee s own case for the A.Yrs. 2013-14 and 2014-15. The lead order was passed for the A.Y. 2014-15 in ITA No.1693/PUN/2018 holding that guarantee fee should be charged at 0.5%, which should be further increased by any expenditure actually incurred by the assessee in furnishin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of the case, the Ld CIT(A) erred in allowing the claim of capital loss of Rs. 922 Crores made through a revised return not claimed in its original return ? 5) Whether on the facts and circumstances of the case, the Ld CIT(A) erred in treating the loss of Rs.922 crores as genuine loss and failed to appreciate the findings of the AO given in para 3.7 (c) (page no.34 to 43) of the assessment order that the loss was an artificial or notional loss created through structured transaction ? 6) Whether on the facts and circumstances of the case, the Ld CIT(A) is erred in treating the loss of Rs.922 Crores as genuine loss even though the assessee failed to substantiate the same and further it was clearly held by the AO that it was an artificial loss created through structured transaction ? 7) Whether on the facts and circumstances of the case, the Ld CIT(A) failed to appreciate that the transaction resulting in loss was between the assessee company and its wholly owned Mauritius subsidiary and even after transferring the shares, the control over the liquidated company remained with the assessee company and thus there was no real loss ? 8) W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the respective grounds for the instant year are similar. We, therefore, set-aside the impugned order and remit the matter to the file of the AO/TPO for computing the ALP of the transaction under consideration by firstly, ascertaining the amount of expenditure actually incurred by the assessee in furnishing the seven loan guarantees and two performance guarantees; and thereafter adding 0.5% as guarantee fee. The impugned order holding that the transactions of performance guarantee should be excluded is also hereby overturned as this issue has also been decided in the Tribunal order against the assessee. Another important factor which requires consideration is that the TPO allowed credit of Rs.2.43 crore against the gross amount of guarantee fee determined by him at Rs.26.27 crore. The assessee agitated the issue before the ld. CIT(A), who allowed further credit of Rs.1.21 crore. It is seen from para 7.4 of the order passed by the Tribunal for the A.Y. 2014-15 that the assessee recovered a sum of Rs.2,43,26,467/- from Bilcare AG during the year. This shows, that the credit of Rs.2.43 crore against the gross guarantee fee determined for the year under consideration go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it takes care of differences between the material factors, conditions and features of products of the assessee vis-a-vis of comparables and dispenses with the need to make adjustments for bringing such varying factors, conditions and features at a common pedestal. Howbeit, the essential requirement for resorting to the internal TNMM is that no differences, having bearing on the operating profits, should persist in factors, conditions and features in the sale of products made by the assessee to its AEs and non-AEs. If not capable of quantification, such material differences thwart the applicability of the internal TNMM. 5.3. Here is a case in which the assessee s total revenue from sales to AEs is Rs.16.27 crore, which is just 4.83% of the combined sales made to AEs and non-AEs. Volume of sales is an important factor in the price determination and the consequential profit rate. Further, sales to AEs are in Germany, Singapore and USA etc., whereas roughly 90% of the non-AE sales are in domestic market only. It deciphers that there are vast geographical differences between the AE and non-AE sales. It goes without saying that geographical locations largely impact the pricing of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reason that the revision of return of income was not warranted on account of bona-fide mistake or omission in the original return of income. (iii) The transaction was carried out between the assessee s company and another wholly owned foreign subsidiary company of the assessee company i.e. Bilcare Packaging Ltd. (Mauritius Entity). There is complete unity of control between the seller and purchaser, therefore, the transaction was not undertaken at arm‟s length. (iv) The Hon ble High Court of Republic Singapore had not determined the actual sale consideration and the whole transaction is premeditate, is dubious transactions entered into with the intention of claiming loss for availing the benefit of losses and proceeded to apply the ratio of the decision of the Hon ble Supreme Court in the case of McDowells Co. Ltd. vs CTO 154 ITR 148 (SC) . 44. However, on appeal before the ld. CIT(A), the ld. CIT(A) while upholding the findings of the Assessing Officer that the claim made through revising the return of income is not valid in law and proceeded to hold that the claim made during the course of assessment proceedings should be considered by the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submits that the material on record clearly shows that after meeting the liabilities of creditors of Singapore company, there remains nothing to be distributed amongst the shareholders. Therefore, the intrinsic value of shares is Nil and, there cannot be any dispute with regard to the consideration received on sale of shares. He further submits that the Rule 11UAA have no application for the year under consideration, for the reason that the provisions of rule 11UAA come into effect w.e.f. 01.04.2018. He further submits that the transaction of sale of shares of BSPL held by the assessee company is not a dubious transaction, as the transaction is real placing reliance on the documents showing the completeness of transaction of sale of shares placed at page no.874 to 876 of the Paper Book. He further submits that the ratio of the decision of the Hon ble Supreme Court in the case of McDowells Co. Ltd. (supra) have no application to the facts of the case as it is a real transaction and the citizens are free to arrange affairs in order to minimize the tax liability. 48. We heard the rival submissions and perused the material on record. The issue in the present grounds of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mains uncontroverted. Therefore, it cannot be said that it is not a bona-fide omission made in the original return of income. Therefore, it cannot be said that the assessee company had failed to satisfy the conditions prescribed under the provisions of sub-section (5) of section 139 of the I.T. Act for filing the revised return of income. Therefore, we hold that the Assessing Officer was not justified in not accepting the revised return of income as filed by the assessee company. It is a settled position of law that an assessee is entitled to revise return of income within the time allowed under the provisions of sub-section (5) of section 139 of the Act, once a revised return of income is filed, the natural consequence is that the original return of income is effaced or obliterated for all the purposes, it is not open to the Assessing Officer to advert to the original return of income. This position of law was approved by Hon ble Supreme Court in CIT vs. Mahendra Mills/Arun Textile C‟/Humphreys/ Glassgow Consultants, 243 ITR 56 (SC), wherein, the Hon ble Supreme Court had inter alia approved the decision of the Hon ble Karnataka High Court in the case of (i) CIT vs. Mangalo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an always support the order of the ld. CIT(A) on the ground decided against him under the provisions of Rule 27 of the Income Tax (Appellate Tribunal) Rules, 1963. 54. Even otherwise, it is a settled position of law that in a case where the assessee files return of loss within the prescribed time u/s 139(1) of the Act, there is no bar under the provisions of the Income Tax Act to claim higher loss during the course of assessment proceedings nor are there any fetters on the Assessing Officer to allow such higher loss. The provisions of section 80 of the Act permits an assessee to carry forward loss and seek its set off u/s 72(1) or 72(2) or 74(1) except when the loss has not been determined in pursuance of return of income filed in accordance with the provisions of sub-section (3) of section 139. 55. The Hon ble Delhi High Court in the case of CIT vs. Nalva Investments Ltd. in ITA No.822/2005, judgment dated 07.08.2020 in a case involving the identical facts held that in the return of income when the assessee had claimed erroneous claim for a lesser amount of loss, which was corrected during the course of assessment proceedings, it was held that the Assessing Officer was not j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is not decisive or conclusive on the issue. In this connection, useful reference can be made to landmark judgments of Hon'ble Supreme Court in CIT vs. Parakh Co. India Ltd. 29 ITR 661 (SC) and Kedarnath Jute Manufacturing Co. Ltd. vs. CIT 82 ITR 363 (SC). Thus, the reasoning of the Assessing Officer that in the absence of entries in the books or balance sheet reflecting the sale of shares, loss cannot be allowed as a deduction does not hold good, in view law laid down by the Hon'ble Supreme Court referred to supra. 59. Next, we deal with an important allegation of the Assessing Officer that the impugned transaction of sale of shares of Bilcare Singapore PTE Ltd. held by the assessee to its another wholly owned foreign subsidiary company Bilcare Packaging Ltd. (Mauritius Entity) for consideration of 1 Singapore Dollar is not genuine transaction, but a colourable device adopted by the assessee to avail the benefit of long term losses. 60. The material on record clearly shows that the assessee company had really sold the shares of Bilcare Singapore PTE Ltd. held by it to its another wholly owned foreign subsidiary Bilcare Packaging Ltd. (Mauritius Entity) after s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC), applying the decision of Hon'ble Supreme Court in the case of Union of India Anr vs. Azadi Bachao Andolan Anr (supra) held that the transaction of dividend stripping held to be is not a sham and bogus and ratio of the Hon'ble Supreme Court in the case of McDowells Co. Ltd. (supra) cannot be applied. Similarly, after referring to the judgments of Hon'ble Supreme Court in McDowells Co. Ltd. (supra) and Union of India Anr vs. Azadi Bachao Andolan Anr (supra), the Hon ble Supreme Court has observed that a subject is not to be taxed without statute support and every taxpayer has right to arrange his affairs so as to pay tax as low as possible and not that which will replenish the treasury. The Hon'ble Supreme Court also felt that no reconsideration of the decision in the case of Union of India Anr vs. Azadi Bachao Andolan Anr (supra) by larger Bench is required. In view of above legal position enunciated above, we are of the considered opinion that the Assessing Officer was not justified in invoking the principle laid down in the decision of Hon'ble Supreme Court in the case of McDowells Co. Ltd. (supra). 62. The next issue that arises for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and exclusively in connection with such transfer; (ii) the cost of acquisition of the asset and the cost of any improvement thereto:' The provisions of sec.48 of the I.T. Act refers to the term 'full value of consideration' received, accrued as a result of transfer of the capital asset. The term Fair Market Value had come up for interpretation before the Hon'ble Supreme Court in the case of CIT v. George Henderson and Co. Ltd. [1967] 66 ITR 622 wherein it was held that the term full value means the whole price without any deduction whatsoever and it cannot refer to the adequacy or inadequacy of the price bargained for. Nor has it any necessary reference to the market value of the capital asset which is the subject-matter of the transfer. The ratio of this decision was subsequently followed by the Hon'ble Supreme Court in the case of CIT v. Gillanders Arbuthnot Co. [1973] 87 ITR 407. Therefore, the legal position that emerges from the decision of the Hon'ble Supreme Court cited supra is that full value of consideration does not mean market value of the capital asset which is the subject matter of the transfer. Originally, the parliament has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussion on facts and law, we are in agreement with the conclusion reached by the CIT(A) that loss arising on sale of BSPL shares is allowable as Long term capital loss. We do not find any merit in the grounds of appeal nos. 4 to 8 filed by the Revenue, accordingly stands dismissed. 66. Ground of appeal no.9 challenges the decision of CIT(A) in directing the Assessing Officer not to deduct sum of Rs.27,20,59,980/- from the value of opening Written Down Value (WDV) from the Block of Assets under which the assets leased to Bilcare Singapore PTE Ltd. falls. Admittedly, the assessee company had not received any consideration in terms of the order passed by the Singapore High Court on the cessation of ownership rights of this asset to Bilcare Singapore PTE Ltd. However, it is stated that under wrong notion, the assessee company reduced a sum of Rs.27,20,59,980/- from opening WDV of the block of assets, thereby resulting in a reduced claim of depreciation. On realization of this mistake, the assessee made a claim during the course of assessment proceedings that not to reduce a sum of Rs.27,20,59,980/- from the opening WDV placing reliance on the following judicial precedents: (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts acquired during the previous year, such excess shall be deemed to be the capital gains arising from the transfer of short-term capital assets; (2) where any block of assets ceases to exist as such, for the reason that all the assets in that block are transferred during the previous year, the cost of acquisition of the block of assets shall be the written down value of the block of assets at the beginning of the previous year, as increased by the actual cost of any asset falling within that block of assets, acquired by the assessee during the previous year and the income received or accruing as a result of such transfer or transfers shall be deemed to be the capital gains arising from the transfer of short-term capital assets: [Provided that in a case where goodwill of a business or profession forms part of a block of asset for the assessment year beginning on the 1st day of April, 2020 and depreciation thereon has been obtained by the assessee under the Act, the written down value of that block of asset and short-term capital gain, if any, shall be determined in such manner as may be prescribed 1 .] 2 [Explanation. For the purposes of this section, reduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reads as follows: 6.3 As mentioned by the Economic Administration Reforms Commission (Report No. 12, para 20), the existing system in this regard requires the calculation of depreciation in respect of each capital asset separately and not in respect of block of assets. This requires elaborate bookkeeping and the process of checking by the Assessing Officer is time consuming. The greater differentiation in rates, according to the date of purchase, the type of asset, the intensity of use, etc., the more disaggregated has to be the record-keeping. Moreover, the practice of granting the terminal allowance as per section 32(1)(iii) or taxing the balancing charge as per section 41(2) of the Income-tax Act necessitate the keeping of records of depreciation already availed of by each asset eligible for depreciation. In order to simplify the existing cumbersome provisions, the Amending Act has introduced a system of allowing depreciation on block of assets. This will mean the calculation lump sum amount of depreciation for the entire block of depreciable assets in each of the four classes of assets, namely, buildings, machinery, plant and furniture. 71. The Hon ble Delhi High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove. The consequence would be to dismiss these appeals. However, there will be no order as to costs. 72. The ratio that can be discerned from the above decision is that once a particular asset, forms a part of particular block of assets in respect of depreciation was allowed, even when that particular asset is not used in the relevant assessment year, the depreciation on that particular block of asset on WDV of that particular block of asset in which this asset falls is still allowable. There is no finding by the Assessing Officer that the block of asset, in which this plant and machinery leased to Singapore company falls, has ceased to exist or there was a surplus in the block of asset in that particular block of asset and, therefore, it is indisputable that no consideration was received by the assessee company on cessation of the ownership rights over the plant and machinery. Therefore, the question of deduction from opening value of that block of assets in terms of section 43(6)(c)(i)(a) does not arise. It is not even the case of the Assessing Officer that there was surplus on that particular block of assets triggering the provisions of section 50 of the Act. Therefore, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such decision does not relate to the power of the assessing officer to entertain a claim for deduction otherwise than by filing a revised return. In the process the Supreme Court recognized that a new claim could not be entertained by the assessing officer without the assessee revising the return. While doing so it was clarified that: 4. . . However, we make it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income-tax Appellate Tribunal under section 254 of the Income-tax Act, 1961. There shall be no order as to costs. 34. In the case of CIT v. Jai Parabolic Springs Ltd. [2008] 306 ITR 42/172 Taxman 258 (Delhi), the Delhi High Court held that there is no prohibition on the powers of the Tribunal to entertain an additional ground which according to the Tribunal arose in the matter and for just decision of the case. 35. In case of CIT v. Pruthvi Brokers Shareholders (P.) Ltd. [2012] 349 ITR 336/208 Taxman 498/23 taxmann.com 23 (Bom) the Bombay High Court considered the issue at considerable length and held that Commissioner (Appeals) as well as the Tribunal have the jurisdiction to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax proceedings are not strictly speaking adversarial in nature and the intention of the Revenue would be to tax real income. 74. Thus, it is clear that the decision of Hon ble Supreme Court in Goetz (India) Ltd. (supra) had no application on the power of the appellate authorities in view of the decision of the Hon ble Bombay High Court in the case of CIT vs. Pruthvi Brokers Shareholders, 349 ITR 336 (Bom.), decision of the Hon ble Delhi High Court in the case of CIT vs. Jai Parabolic Springs Ltd., 306 ITR 42 (Delhi), decision of the Hon ble Gujarat High Court in the case of CIT vs. Mitesh Impex (supra). Therefore, in our considered opinion, the ld. CIT(A) is correct in allowing the claim of assessee. We do not find any perversity or illegality in the findings of CIT(A). We do not find any merits in grounds of appeal filed by the Revenue, hence dismissed. 75. In the result, the appeal filed by the Revenue in ITA No.273/PUN/2021 stands partly allowed for statistical purposes. C.O. No.14/PUN/2021 By Assessee : 76. The present cross objection is filed by the assessee company against the findings of the ld. CIT(A) that the loss arising on sale of shares of BS ..... X X X X Extracts X X X X X X X X Extracts X X X X
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