:1: bgp bgp bgp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION INCOME INCOME INCOME TAX APPEAL NO.962 OF 2007 TAX APPEAL NO.962 OF 2007 TAX APPEAL NO.962 OF 2007 The Commissioner of Income Tax, ..Appellant Vs. M/s.Nirmit Exports Pvt.Ltd. ..Respondent Mr.Suresh Kumar for the Appellant. Mr.A.K.Jasani for the Respondent. CORAM CORAM CORAM :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & S.J.KATHAWALLA, S.J.KATHAWALLA, S.J.KATHAWALLA, JJ. JJ. JJ. DATE DATE DATE : 11TH AUGUST, 2008 : 11TH AUGUST, 2008 : 11TH AUGUST, 2008 P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. By the above Appeal, the Appellant is seeking to raise the following substantial questions of law: a. Whether on the facts and in circumstances of the case, the Hon’ble ITAT was right in law in dismissing the Revenue’s Appeal on the sole ground that the decision in the case of M/s.Airbourne Investment Fin.P.Ltd. is squarely applicable to the present case; whereas in fact, the said is distinguishable and not comparable to the facts of the Assessee’s case? b. Whether the Hon’ble Tribunal was right in law in dismissing the Revenue’s Appeal by holding that the assessee has not derived any benefit chargeable under Section 28(iv) on account of difference in the purchase price of shares and it’s break-up value, as on the date of purchase? c. Whether the Hon’ble Tribunal was right in law in placing reliance on the case law of ACIT Vs. Aswari Inv. & Fin. Pvt.Ltd. in the order of Mumbai Bench "G" of the Tribunal in ITA No.6419/Mum/00-01, without appreciating that in that case, the shares in question were :2: quoted one and the purpose for issuing the shares were to retain the management and control, both of which were absent in the assessee’s case? 2. We have perused the order dated 19th October,2006 passed by the Income Tax Appellate Tribunal, wherein in paragraph No.2.2 the Tribunal has given a clear finding that there is absolutely no justification on the part of the Assessing Officer to add Rs.1,40,76,000/-, which was made without any legal authority whatsoever and the most important factor is that the Assessing Officer seems to have omitted to consider that the shares concerned were that of a Private Limited Company which cannot be sold in an open market, hence there is no market value and the same cannot be computed. 3. Under these circumstances, as it is only a matter of finding of fact, there is no substantial question of law involved in the above Appeal. Hence, the same stands dismissed. (S.J.KATHAWALLA,J.) (S.J.KATHAWALLA,J.) (S.J.KATHAWALLA,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.)