2 Sections 2(29A) r.w.s. 2(42B) and 251 – Gain arising on sale of shares of a private limited company, offered in the return of income as `short term capital gain’ can be claimed, for the first time, to be `long term capital gain’ before appellate authority even without filing a revised return of income.

 .       2018] 91 taxmann.com 28 (Mumbai – Trib.)

Ashok Keshavlal Tejuja vs. ACIT

ITA No. : 3429 (MUM.) of 2016

A.Y.: 2011-12: Date of Order: 15^th
February, 2018

FACTS

During the previous year
relevant to assessment year 2011-12, the assessee had sold shares of a private
limited company. Gain arising on sale of these shares was shown in the return
of income, filed by the assessee, as short term capital gains. In the course of
assessment proceedings, the assessee, without having revised the return of
income, filed a letter and also a revised computation of income thereby making
a claim that the gain arising on sale of shares of private limited company need
to be considered as `long term capital gains’. This additional claim was denied
to the assessee.

Aggrieved by the assessment
made, the assessee preferred an appeal to the CIT(A) and in the course of
appellate proceedings the assessee raised the said claim before the CIT(A). The
CIT(A) did not entertain the claim made by the assessee on the ground that it
was made otherwise than by filing a revised return of income.

Aggrieved,
the assessee preferred an appeal to the Tribunal where the assessee brought to
the notice of the Tribunal the decision of the Apex Court in the case of Goetze
(India) Ltd. vs. CIT [2006] 284 ITR 323 (SC) and also the decision of the
Bombay High Court in the case of CIT vs. Pruthvi Brokers & Shareholders
[2012] 349 ITR 336 (Bom.).

HELD

The Tribunal noted that the
Supreme Court in the case of Goetze India Ltd. (supra) and also the
Bombay High Court in the case of Pruthvi Brokers & Shareholders (supra)
has clearly held that the additional claim can be filed before the appellate
authorities even if the same is not filed by way of revised return of income.
Since the assessee had filed the claim before the AO as well as before the
CIT(A) to bring to tax the capital gains as long term capital gains on sale of
share of private limited company instead of short term capital gain as declared
in the return of income, the Tribunal admitted the claim filed by the assessee.

The Tribunal remitted the
matter to the file of the AO for considering the aforesaid additional claim
raised by the assessee on merits after hearing the contention of the assessee
and evaluating the evidences filed / to be filed by the assessee on merits in
accordance with law.

 This ground of appeal filed
by the assessee was allowed.