The Commissioner Of Income Tax -Central - Iii, Mumbai v. M/S. Family Investment Pvt. Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. INCOME TAX APPEAL NO.2233 OF 2009 The Commissioner of Income Tax -Central - III, Mumbai..Appellant. Vs. M/s. Family Investment Pvt. Ltd. ..Respondent. ..... Mr. Suresh Kumar for the Appellant.None for the Respondent. .... CORAM:DR. D.Y. CHANDRACHUD, & J.P.DEVADHAR, JJ. 4th January, 2010. P.C.: 1.Two questions of law have been raised on behalf of the Revenue in this appeal under Section 260-A of the Income Tax Act, 1961: "i)Whether on the facts and in the circumstances of the case, the Hon'ble ITAT is correct in law in holding that the benefit which has arisen to the assessee company by purchase of 8,00,000/- shares of Sun Petrochemicals Pvt. Ltd. @ Rs.5/- per share from subsidiary company M/s. Azzsilfil Finlease & Investment Pvt. Ltd. can be taxed u/s 28(iv) of the Act in the hands of the assessee. The seller had purchased the said share at rate of Rs.10/- in the earlier year. Hence the AO has added the difference in the value of shares as benefit arisen to the assessee; ii)Whether on the facts and in the circumstances of the case, the Hon'ble ITAT is correct in confirming the deletion of addition of Rs.4,85,380/- without considering the stock exchange price of share of M/s. Yogi Polyster Ltd. as the sale price is less than the market price;" 2.Insofar as the first question of law is concerned the finding of the Tribunal is based on the decision in the case of Nirmit Exports Private Limited (ITA 271/Mum/2004 and in Asawari Investment and Finance Private Limited (ITA 6419/Mum/2003). The attention of the Court has been drawn to the fact that the appeal filed by the department against the judgment of the Tribunal in the case of Nirmit Exports Private Limited was dismissed by a Division Bench of this Court on 11th August, 2008 (Income Tax Appeal 962 of 2007). The Tribunal has therefore followed a view which has been affirmed by a Division Bench of this Court. 3.Insofar as the second question is concerned, the Tribunal observed that the issue related to the addition of an amount of Rs. 4,85,380/- by the assessing officer. The assessee had sold 3,46,700 shares of Yogi Polyester Limited to one of its group concerns at Re.1/ per share, which was stated to have resulted in a long term capital loss of Rs.4,85,380/-. According to the assessing officer the said price was less than the market rate and consequently the loss declared by the assessee was disallowed. On appeal the CIT (Appeals) ordered the deletion of the addition. The Tribunal has entered a finding of fact that there was no evidence that any consideration passed between the parties to the transaction over and above the agreed price. This is a pure finding of fact. 4.In these circumstances, the appeal does not raise a substantial question of law for the decision of this Court and shall accordingly stand dismissed. (DR.D.Y.CHANDRACHUD, J.) (J.P.DEVADHAR, J.)