Rakeshbhai Karsanbhai Patel, ... vs Dcit, Circle-3(1)(1), Ahmedabad on 23 September, 2019
(i) High Court of Bombay in the case of Killick Nixon Ltd. v. DCIT [2012] 2O
taxmann.com 703 (Bom.)
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Killick Nixon Limited vs Dcit on 6 March, 2012
Acit.,(Osd)-I,Circle-4,, Ahmedabad vs Deepakbhai N.Parikh, Ahmedabad on 7 November, 2016
10. Further on going through the judgment of Hon. Bombay High
Court heavily relied by ld. DR in the case of Killick Nixon Ltd. vs.
DCIT (supra) we find that the facts dealt in this case are different to
the extent that the long term capital loss claimed as set off were
investigated by ld. Assessing Officer and were found to be circuitous
transaction by way of purchase at exorbitant price and subsequently
sold at negligible/throw away price and, therefore, said transaction of
ITA No. 1879 & 2015/Ahd/2011 11
Asst. Year 2008-09
shares were treated as sham and genuineness of the transaction was
doubted by Assessing Officer.
Shreepal Humad, Indore vs The Pr Cit-1, Indore on 21 June, 2023
12. Thus, the Hon'ble High Court has held that in case the appeal is
pending at any level the taxpayer is entitled to avail benefit of the VSV
Scheme and therefore, there is no justification in proceeding further with
the preceding initiation u/s 263 of the Act. The Hon'ble Supreme Court in
case of Killick Nixon Ltd. vs. DCIT (supra) while considering the declaration
under Kar Vivad Samadhan Scheme 1998 held as under:
Dcit,Cir -6(1), Kolkata, Kolkata vs M/S Off-Shore India, Kolkata on 10 October, 2018
We, therefore, find that it was not a case where profits were
earned by the assessee in respect of transaction with third parties and thereafter, the loss
was artificially created to be set off against such income which is a distinguishing factor.
We also take note that both the gain as well as the loss related to sale of shares by the
assessee within the group and in respect of group entities and the principal purpose of such
transaction was to achieve the restructuring of the RPG group and so cannot be termed as
colourable device adopted by assessee to reduce its legitimate tax on the peculiar facts of
this case. We also find that no substantial tax benefit was derived in the future years as
well. On these peculiar facts, therefore, we agree with the Ld. AR's contention that the ratio
laid down in the judgment of Killick Nixon Ltd., supra are not applicable in the facts and
circumstances of this case.
Special Prints Ltd.,, Surat vs Department Of Income Tax on 29 August, 2012
The advantage which the appellant company has
acquired cannot be considered to be artificial and there is no question
of any colourable device adopted by the appellant company as held
by the AO and therefore the setting off of long term capital loss
incurred on account of sale of 1% CCP Shares of M/s. Garden
Finmark Limited is allowed against the short term capital gain.."
During the course of hearing before us, the learned D R had placed
strong reliance on the ruling of the Hon'ble Bombay High Court in the
case of Killick Nixon Limited v. DCIT reported in (2012) 20
Taxmann.com 703 (Bom).
Malibu Estates Pvt. Ltd , New Delhi vs Department Of Income Tax on 9 April, 2012
Learned
Assessing Officer miserably failed to appreciate this aspect, and observed
that it is a bogus and sham transaction. He has not assigned any reason for
such conclusion. Learned DR also pointed out that it is a colourable device.
According to him, it should be appreciated in the light of human probability
and he referred three decisions, namely, Sumiti Dayal Vs. CIT 214 ITR 801,
Killick Nixon Ltd. Vs. DCIT (2012) - TIOL - 190 (H.C. Gupta ), XYZ
India (2012) 20 Taxman.com.89.
M/S.T.Lakhamshi Ladha & Co vs The C.I.T.,Mumbai City-Ii Mumbai on 4 May, 2016
Mr.Suresh Kumar then relied upon the decision of this Court in case of Harish
Textile Engrs. Ltd. vs. DCIT (2015) 379 ITR 160 to which one of us (M.S.
Sanklecha, J) was a party and in which case the appeal had been admitted and the
substantial question of law involved consideration of 'on money' received by a party.
Gigaplex Estate P.Ltd, Mumbai vs Dcit Osd Ii Cen Rg 7, Mumbai on 10 November, 2017
In the case of Killick Nixon Ltd Vs DCIT 2012 81 CCH 0066 the
Hon'ble Bombay high court has held that where a transaction is a sham
and not genuine then it cannot be considered to be part of tax planning or
43
ITA No.1132 and 1133/Mum/2016
legitimate avoidance of tax liability. In the case of the assessee it is not a
sham transaction as the receipts were assessed in the hands of recipients
and not doubted. The AR finally submitted that the decisions relied upon
by the ld DR are not be applicable to the assessee's case as they are
rendered or pronounced on different set of facts and circumstances. Thus
transaction cannot be regarded as sham and non genuine. Hence the
disallowance made by the AO is prayed to be deleted.
Gigaplex Estate P.Ltd, Mumbai vs Dcit Osd Ii Cen Rg 7, Mumbai on 10 November, 2017
In the case of Killick Nixon Ltd Vs DCIT 2012 81 CCH 0066 the
Hon'ble Bombay high court has held that where a transaction is a sham
and not genuine then it cannot be considered to be part of tax planning or
43
ITA No.1132 and 1133/Mum/2016
legitimate avoidance of tax liability. In the case of the assessee it is not a
sham transaction as the receipts were assessed in the hands of recipients
and not doubted. The AR finally submitted that the decisions relied upon
by the ld DR are not be applicable to the assessee's case as they are
rendered or pronounced on different set of facts and circumstances. Thus
transaction cannot be regarded as sham and non genuine. Hence the
disallowance made by the AO is prayed to be deleted.
Dcit, Chennai vs Tvs Investments Lrd.,, Chennai on 11 June, 2024
Purchase and sale of TVSF&S was not part of any tax planning programme. Even if the
share had been sold at a later point of time, there is no chance of a higher value being
realized. The AO has cited the decision of the Madhya Pradesh High Court in Binodiram
Balchand &Co. CIT (2001)118 Taxman 544. Indeed, the observations of the Madhya
Pradesh High Court decision actually assist TVSM as the purchase price was based on
SEBI regulations and the sale price was based on a valuation certificate. These cannot be
called as lacking in transparency or bona tides. The AO has not given any finding that the
purchase price or selling price was not correct. There is also no explanation as to how the
purchase price of a share based on SEBI regulations can be deemed to be the selling
price. The Bombay High Court decision in Killick Nixon Ltd. v DCIT 20 Taxmann.com 703: