Madhu Sarda v. ITO (Mum)(Trib) , www.itatonline.org

S. 45: Capital gains- Set off of capital loss-Sham transaction”/ “Colourable device”- Sale of shares to son cannot be held to held to be colourable device if the transaction is with in the four corners of law and valid

Allowing the appeal of the assesee the Tribunal held that ; the sale of shares in a Pvt Ltd company by the assessee to a relative (son) in order to book losses so as to set-off the capital gains from on sale of property cannot be rejected as a sham transaction / colourable device if the transaction is within the four corners of law and valid. The transactions carried by assessee are valid in law, cannot be treated as non-est merely on the basis of some economic detriment or it may be prejudicial to the interest of revenue. Further, if the period co-existed or permitted the assessee to set off her capital loss against the capital gain earned, would itself not give rise to the presumption that the transaction was in the nature of colourable device. We notice that the assessee has taken indexed case of acquisition of share at Rs. 30,40,400/-. We notice that the Assessing Officer has not examined the same and accordingly direct him to verify the computation given by the assessee and allow set off of correct amount of Long Term Capital Loss against Long term capital gain. ( ITA No. 7410/Mum/2012, dt. 09.03.2018)(AY.2006-07)