1. When this Appeal was called our, Mr. Trivedi, learned Senior Counsel appearing on behalf of the Respondent/Assessee, handed over to us a copy of the order dated 24th March, 2014 passed in Income Tax Appeal No. 94/2012 (CIT v. Kaizen Commercial (P.) Ltd.) He submitted that the point raised in the present Appeal is covered by our order dated 24th March, 2014 in the above case.
2. However, Mr. Chhotaray, learned counsel appearing on behalf of the Appellant/Revenue, submitted that the facts and circumstances in the present case are different and the order passed in the other matter cannot be of any assistance. He submits that the question of law framed at paragraph 5(A) is a substantial question of law. The Income Tax Appellate Tribunal in reversing the order passed by the Assessing Officer and confirming that of the Commissioner of Income Tax (Appeals), has not assigned any independent reasons. It has merely confirmed the order passed by the CIT (Appeals) in one paragraph. In such circumstances a substantial question of law as framed at paragraph 5(A) would arise for determination and consideration.
3. We are unable to agree. The ITAT in the case at hand held that one crore shares of M/s Reliance Infocom Limited were given to three companies, namely, M/s Fairever Traders & Consultants Private Limited, M/s Softnet Traders and Consultants Private Limited and M/s Prena Auto Private Limited on face value of Rs. 1/-. That was subject to the condition that the Assessee has to execute a job work of laying of Optic Fibre Cable by achieving target of at least 50000 buildings within the stipulated period. This condition was not fulfilled by the Assessee and he returned one crore shares. The shares were given by M/s Ganesh Infrastructure Capital Fund and returned by the Assessee to the said M/s Ganesh Infrastructure Capital Fund. The ITAT noted as a matter of fact that there was no final transfer of these shares either in the name of Assessee or in the name of Companies in which the Assessee is a Director. If the transfer was conditional and if the Assessee fails to comply with conditions and therefore, the shares could not be transferred in his name, then, applicability of Section 28(iv) of the Income Tax Act, 1961 is ruled out.
4. Mr. Chhotaray would only read paragraph 6 of the order of the ITAT. He overlooks paragraph 6.1 in which the ITAT considered an identical case of Kaizen Commercial (P.) Ltd. (supra). Relying on the findings in M/s Kaizen Commercial Private Limited, the ITAT held that the present case is identical to the said case.
5. Pertinently, the Appeal of the Revenue in the case of Kaizen Commercial (P.) Ltd. (supra) has been dismissed by us by the order dated 24th March, 2014 by holding that no substantial question of law arises for determination and consideration in that Appeal.
6. Section 2(24)(vd) of the Income Tax Act, 1961 refers to the value of any benefit or perquisite taxable under clause (iv) of Section 28. That is income in the inclusive definition. Section 28(iv) is relied upon in the case ofKaizen Commercial (P.) Ltd. (supra) as also in the present case. If the income chargeable to income tax under the head "profits and gains" includes the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession, but finding that such benefit or perquisite, whether convertible into money or not, has not been derived in this case by the Assessee, that we are of the opinion that Section 28(iv) cannot be invoked as far as the Assessee is concerned. All findings of fact arrived at by the CIT (Appeals) concurrently point to the fact that the Companies may have got the contracts through the Assessee and as part of the contract the shares were handed over, but handing over of the shares was conditional. The Assessee failed to abide by the condition and eventually returned the shares. There was a finding of fact that no benefit or perquisite was arising from the deal in question. In such circumstances nothing more need be investigated or probed further as observed by us in the order in the case of M/s Kaizen Commercial Private Limited.
7. For the reasons that have persuaded us to dismiss the Appeal in the case of Kaizen Commercial (P.) Ltd.(supra) and for these additional reasons, we do not find that this Appeal raises any substantial question of law. It is, accordingly, dismissed. No costs.