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2019 (8) TMI 1320 - ITAT KOLKATA
Bogus LTCG - addition u/s 68 - HELD THAT:- Purchase and sale consideration have passed through the banking channel and the shares were in demat account and sale took place electronically through the platform of stock exchange and assessee has remitted STT. Thus, the assessee had discharged the onus casted upon him to make the claim. AO without finding any fault with the documents as discussed [supra] has relied on the third party statements which were taken behind the back of assessee; and neither the copy of which was given to the assessee nor an opportunity to cross examine the makers of the statement make the reliance of the statement by AO bad in law as held by the Hon’ble Supreme Court in case of CCE vs. Andaman Timber Industries [2015 (10) TMI 442 - SUPREME COURT] and cannot be the basis to disallow the claim and without finding fault with the evidences furnished by the assessee.
It is noted that the facts of the case of the assessee are identical with the facts in the above case wherein the co-ordinate bench of the Tribunal has deleted the addition in the case of Acchyalal Shaw [2009 (1) TMI 303 - ITAT CALCUTTA-B] in respect of sale of shares of M/s QFSL. As inclined to set aside the order of Ld. CIT(A) and direct the AO not to treat the long term capital on sale of shares of M/s QFSL and also the commission expenses as bogus and delete the consequential additions. Therefore, the appeal of assessee is allowed.
Addition on account of commission payment for earning the LTCG u/s. 69C - HELD THAT:- Since, we have allowed the assessee’s claim of LTCG, the consequential expenses incurred by the assessee in this regard is also allowed.