9911796707
TMI Blog1984 (3) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... r dt. 4th June 1974 in Company Petition No. 139 of 1971 the Hon'ble High Court decreed certain terms of settlement arrived at between the parties regarding the subject matter of application. According to these terms of settlement M/s Bagree Estate (P) Ltd. was to transfer by conveyance the land and building situated at premises being No. 54 Ezra Street, Calcutta to Shri Gordhandas Bagri, Smt. Kamla Devi Bagri, and Smt. Krishma Bagri wife of Shir Chand Ratan Bagri and Uttam Kumar Bagri, and Smt. Krishna Bagri wife of Shri Chand Ratan Bagri in consideration of: (1) their surrendering 310 fully paid up shares of the company in favour of that company and (2) their transferring 180 fully paid shares in the company to Kisshendas Bagri, Gopaldas B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he property on the date of transfer at Rs. 4,90,000 against the book value of Rs. 3,10,000. If there was any capital gains such gains accrued to Bagree Estate (P) Ltd. The CIT (A) was of the opinion the directions of the IAC have to be communicated to the assessee and what the Act requires is that no directions, which are prejudicial to the assessee, shall be issued before an opportunity is given to the assessee to be heard. He, therefore, held that the assessee did not have any grievance on this score. 5. Coming to the ground relating to the assessment order being barred by limitation, the CIT (A) found as under: (1) The draft assessment order dt. 17th March, 1978 was served on the assessee on 18th March, 1978. (2) The objection of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opinion that in terms of Calcutta High Court order dt. 12th July 1974 in Company Petition No. 139 of 1971, the assessee transferred her holding of shares in Bagree Estate (P) Ltd. in order to obtain a proportionate share in the house property at 54, Ezra Street, Calcutta. Therefore, the said transfer clearly attracted capital gains since there was both a transfer and a exchange involved in the aforesaid transaction. The CIT (A) rejected the assessee's contention that the lot of 145 shares in M/s Bagree Estate (P) Ltd. having been surrendered by the assessee in terms of a family settlement and as per directions of the Calcutta High Court did not give rise to capital gains. In short, the CIT (A) held that long-term capital gains arose on ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold that there was a transfer of property as a result of which long term capital gains arose. The ld. counsel for the assessee also alternatively urged that even if there arose long-term capital gains the lower authorities should have considered the value of the shares exchanged as on 1st Jan., 1954 in computing the taxable capital gains. The other submission as were advanced before the CIT (A) were also reiterated before us. 10. The ld. departmental representative, on the other and highlighted the reasons given by the lower authorities for coming to the conclusion that the assessment was not barred by limitation, that the assessment was not illegal but irregular, and that the long-term capital gains arose on exchange of shares with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferred by a conveyance. This, in our opinion, clearly is a case of transfer; and, therefore, it fell within the ambit of capital gains tax.
13. We, however, find force in the submission of the ld. counsel for the assessee that the ITO should have given the assessee adequate opportunity of being heard and to place material in support of valuation of shares as on 1st Jan., 1954 which were exchanged with the portion of the house property at 54, Ezra Street, Calcutta. We, therefore, direct the ITO to consider this aspect of the matter while making the assessment afresh in pursuance of the order of the CIT (A).
15. In the result, the appeal shall be treated as partly allowed, as indicated above. X X X X Extracts X X X X X X X X Extracts X X X X
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