Capital gains on unlisted shares @ 10% without indexation benefit - Claim at the time of assessment afresh applying clarificatory amendment of Finance Act, 2016 on Section 112(1)(c)(iii) subsequently made available retrospective vide Finance Act, 2017 w.e.f. A.Y. 2013-14.

Facts:

Assessee a Japanese company had sold unlisted shares of its Indian entity and out of precaution paid tax @ 21.63% and returned their income thus. Subsequently at the time of assessment, without filing a revised return, they took a stand that the Capital gains would be taxable only @ 10% without indexation based on the clarificatory amendment of Section 112(1)(c)(iii) in Finance Act, 2016 (subsequently held retrospective wef AY 2013-14) as against the 21.63% as per Section 112(1)(c)(ii). This was not entertained by the AO and then by the CIT(A) holding that no revised return was filed + there was no specific circular from CBDT to grant the benefit retrospectively as well. On higher appeal -

Held in favour of the assessee that the retrospective amendment would apply to them with capital gains being 10% as per Section 112(1)(c)(iii). CBDT Circular No.. 14 (XL-35) of 1955, dated 11-4-1955 was referred by ITAT wherein it was confirmed that officers cannot deny assessee's of benefits due to them and withhold taxes incorrectly taking advantage of their ignorance.

Fresh claim is possible before CIT(A) or before ITAT and does not need a revised return either given these authorities have wide latitude to entertain such claims under their plenary powers.

Applied:

B.G. Shirke Construction Technology (P.) Ltd. (2017) 79 taxmann.com 306 (Bombay) : 2017 TaxPub(DT) 0735 (Bom-HC)

Karnataka State Co-operative Federation Ltd. (2021) 128 taxmann.com 1 (Karnataka) : 2021 TaxPub(DT) 1509 (Karn-HC)

Abhinitha Foundation (P.) Ltd. (2017) 83 taxmann.com 100 (Madras) : 2017 TaxPub(DT) 1942 (Mad-HC)

Sesa Goa Ltd. (2020) 117 taxmann.com 548 (Bombay) : 2020 TaxPub(DT) 1981 (Bom-HC)

Case: Bridgestone Corporation v. ACIT 2023 TaxPub(DT) 1174 (Ahd-Trib)