Tax Is Not Leviable Upon The Assessee On The Said Receipt v. Brahmi Investments Pvt Ltd. In That View Of The Matter, The Present Tax Appeal Is Disposed Of In Terms Of Judgment And Order Rendered In Tax Appeal

O/TAXAP/950/2005 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 950 of 2005 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ COMMISSIONER OF INCOME TAX....Appellant(s)Versus PANNER INVESTMENT PVT.LTD.....Opponent(s) ================================================================ Appearance: MR.VARUN K.PATEL, ADVOCATE for the Appellant(s) No. 1 MR RK PATEL, ADVOCATE for the Opponent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERIandHONOURABLE MR.JUSTICE K.J.THAKER Date : 10/10/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1.By way of this appeal, the appellant-Revenue has challenged the impugned judgment and order passed by the learned Income-tax Appellate Tribunal, Ahmedabad Bench ’B’ in ITA No. 1387/AHD/2002 for the assessment year 1994-95, whereby, the appeal of the ori. Appellant-department was dismissed. 2.This appeal was admitted to consider the following question of law: “Whether the Appellate Tribunal is right in law and on facts in holding that capital gain chargeable to tax u/s. 46(2) will also be eligible for grant of benefit envisaged un section 47(v) of the Act ?” 3.The earlier Division Bench of this Court has ordered that this Tax Appeal to be heard along with Tax Appeal No. 102/1995. 4.The brief facts are that the assessee is an Investment Company. The return of income was filed on 10.11.1994 declaring total income O/TAXAP/950/2005 JUDGMENT at Rs. Nil. On scrutiny of accounts, it was discovered by the A.O. That the assessee company has received an amount of Rs. 9,36,862.20 towards 3[rd] and 4[th] distribution made by the liquidators of Shetrunjaya Investment Pvt. Ltd., which is wholly owned subsidiary of the assesee company. The assessee company has claimed the said distribution as exempt under Section 47(iv)/47(v) read with section 46(2) of the I.T. Act on the basis of ITAT decision rendered in ITA No. 5936/A/91 dated 21.7.93 in the case of Brahmi Investment P. Ltd. The AO instead of following the decision of the Tribunal, followed the decision of the CIT(A) rendered in the case of Alkapuri Investments Pvt. Ltd., and held that the amount of Rs. 1,44,330/- being surplus distribution over the capital contribution received from the subsidiary, Kanjanjunga Investment Pvt. Ltd., is to be taxed as capital gain. 5.Heard the learned advocates appearing for the parties and considered the rival submissions made on behalf of the respective parties. The learned advocate appearing for the assessee has pointed out that the issue is squarely covered in favour of the assessee by the decision of this Court rendered in the case of Brahmi Investment P. Ltd., wherein, this Court has considered this legal aspect O/TAXAP/950/2005 JUDGMENT from all angles and held that the capital gain 5.Heard the learned advocates appearing for the parties and considered the rival submissions made on behalf of the respective parties. The learned advocate appearing for the assessee has pointed out that the issue is squarely covered in favour of the assessee by the decision of this Court rendered in the case of Brahmi Investment P. Ltd., wherein, this Court has considered this legal aspect O/TAXAP/950/2005 JUDGMENT from all angles and held that the capital gain tax is not leviable upon the assessee on the said receipt. 6.In that view of the matter, the issue raised in the present Tax Appeal is now covered by the decision of this Court in Tax Appeal No. 102/1995 dated 07/10.02.2006, which is reported in [2006] 286 ITR 66 (Guj.) in the case of Commissioner of Income Tax vs. Brahmi Investments Pvt Ltd. In that view of the matter, the present Tax Appeal is disposed of in terms of judgment and order rendered in Tax Appeal No. 102/1995, as referred to hereinabove. (K.S.JHAVERI, J.) mandora (K.J.THAKER, J)