-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY + ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 620 OF 2004 The Commissioner of Income-Tax ) City-12, Mumbai ).. Appellant Versus Hemendra M. Kothari ).. Respondent ALONG WITH INCOME TAX APPEAL NO. 659 OF 2007 The Commissioner of Income-Tax ) Mumbai City-IV, Mumbai ).. Appellant Versus Hemendra M. Kothari ).. Respondent Mr Vimal Gupta i/b Mr Pankaj Kapoor for the Appellant. Mr Soli Dastur i/b Kanga & Co. for the Respondent. CORAM: SWATANTER KUMAR, C. J. & A. P. DESHPANDE, J. DATE: 8TH JULY 2008. P.C. Both these Appeals are directed against the orders of the -2- Income Tax Appellate Tribunal dated 9th September 2003 and 9th April 2003. Though the Appeals relate to different asseseess, but the question considered by the Tribunal is common. Income Tax Appeal No. 659 of 2007 was decided first by the Tribunal and the decision and reasoning given therein was followed in Income Tax Appeal No. 620 of 2004 giving rise to both these Appeals. 2. Having heard the learned Counsel appearing for the parties, we are of the considered view that no question of law much less a substantial question of law arises in the present Appeals. While distinguishing the judgment of the Kerala High Court in the case of Rajagiri Rubber & Produce Co. Ltd,the Tribunal held that the delivery of shares was for the purposes of custody to an escrow agent and no title had transferred in the year 1997-98 and rejecting the Appeal held that this would be assessable in the year 1998-1999. Referring to the facts and circumstances of the present case, the Tribunal noticed that the handing over of shares was subject to many terms and conditions like, exercising option, obtaining approval from various Government statutory authorities and the view taken by the assessing authority was not based on any sound reasoning. Upon appreciation of facts based -3- on evidence on record of the case, the Tribunal held as under :- “... In the case of the assessee and with regard to the transfer of the 20,00,000 shares, the legal formalities were initiated and completed in the months of January and February 1998. There is hardly any basis for holding that the actual transfer has taken place prior to that. The cases cited on behalf of the assesee support this view. Therefore, after carefully considering all the relevant facts, we hold that the transfer of 20,00,000 shares took place only in the previous year relevant to the AY 98-99 and therefore no income as a result of such transfer has arisen in the previous year relevant to the AY under appeal. Accordingly, on that basis the addition made by the AO is directed to be deleted. 13. The ground No. 4 pertains to AO's finding that the income on transfer of shares is in thenature of business income and not capital gain. In view of our finding given above, this ground is only of academic interest and, therefore in our view, is not required to be dealt with. 14. The ground No. 5 pertaining to charging of interest u/s. 234 B is only consequential in nature and therefore, the AO is directed to re-calculate the interest chargeable, if any u/s. 234 B of the IT Act, while giving effect to this order. 15. The last ground is only repetitive and is not required to be dealt with.” 3. It may also be noticed as a matter of fact, that it was recorded that only 31.4% of the sale consideration was paid which was paid by -4- way of advance, but the entire sale consideration admittedly was not even determined. 4. We find no infirmity with the orders impugned in the present Appeals. In the circumstances, both the Appeals are accordingly dismissed. No order as to costs. CHIEF JUSTICE A.P. DESHPANDE, J.