Income Tax Appeal v. M/S Bonaire Exports Pvt.ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL No. 1187 OF 2008. INCOME TAX APPEAL No. 1187 OF 2008. The Commisioner of Income-tax, Mumbai. Appellant. Vs. M/s Bonaire Exports Pvt.Ltd. .. Respondent. Mr Suresh Kumar, Advocate for the Appellant. Mr P. J. Pardiwalla, Sr.Counsel, i/b A. K. Jasani for the Respondent. CORAM: Dr.S. RADHAKRISHNAN CORAM: Dr.S. RADHAKRISHNAN CORAM: Dr.S. RADHAKRISHNAN AND V.C.DAGA, JJ. AND V.C.DAGA, JJ. DATED: 5TH DECEMBER, 2008. DATED: 5TH DECEMBER, 2008. P.C.: P.C.:---- ---- 1. Heard the learned counsel for the appellant and the learned counsel for the respondent. 2. The above appeal is admitted on the following substantial question of law: 1. Whether on the facts and in the circumstances of the case, the Hon’ble ITAT was right in law in dismissing the revenue’s appeal on the sole ground that the decision in the case of M/s Airbourne Investment Fin.Pvt. Ltd is squarely applicable to the present case,whereas in fact the said case is distinguishable and not comparable to the facts of the assessee’s case? 2. Whether the Tribunal was right in law in dismissing the Revenue’s appeal and holding that the assessee has not derived any benefit chargeable under Section 28 (iv) on account of difference in the purchase price of shares and its break-up value, as on the date of purchase? 3. Whether the Tribunal was right in law in placing reliance in the case law of M/s KNB Investment Pvt Ltd [as reported in 79 ITD 238 (Hyd)], without appreciating that in that case, the shares in question were quoted and the purpose for issuing the shares were to retain the management and control, both of which were absent in the assessee’s case? 3. The learned senior counsel appearing for the Respondent specifically pointed out that the question of law raised in this appeal is squarely covered by the order of this Court being Income Tax Appeal No. 962 of 2007 dated 11.8.2008. In view thereof, we decline to entertain this appeal. Over and above, we have perused the Tribunal order dated 30.3.2006 wherein the Tribunal has observed as under:- "We have perused the records and find that the issue is squarely covered by the decision of Mumbai Bench of Tribunal in the case of M/s Airbourne Investment Finance Pvt Ltd (supra), wherein it has been held that no benefit has been derived by the assessee, which can be brought to charge of tax under Section 28 (iv) of the I.T.Act, merely on the basis that the assessee purchased shares from the sister-concern at a cost, which is lower than the break-up value." ( 3 ) ( 3 ) ( 3 ) 4. There is no substantial question of law involved in the above appeal. Hence, the same stands dismissed. (DR S. RADHAKRISHNAN,J) (V.C. DAGA,J)(DR S. RADHAKRISHNAN,J) (V.C. DAGA,J) (DR S. RADHAKRISHNAN,J) (V.C. DAGA,J)