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TMI Blog2009 (8) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... nserved cannot by itself be held against the assessee. - The Department has thus proceeded entirely on suspicion and surmises if seen in the light of the orders of the Tribunal. The claim of the assessee in regard to the first issue is to be allowed. Exemption u/s 54F - residential premises or commercial premises - even if ultimate buyer of the shares is not known, the claim for s. 54F cannot be denied - held that:- The assessee, has put no sufficient material on record and had not demonstrated that house was used as a residence of the assessee. It may be a well furnished house with bedrooms, kitchen and toilets but that is not sufficient because to claim deduction it must be shown to have used for residence. - Assessee has also not produced ration card, voters' identification card or other evidence for residence. There is no such current scenario that residential premises in a commercial premises has been or becoming a general trend. - ITA No. 273/Agra/2004 - - - Dated:- 7-8-2009 - Member(s) : R. P. GARG., B. R. JAIN., SMT. DIVA SINGH. ORDER-B.R. JAIN, A.M.: October, 2007 This appeal by the assessee is against the order dt. 18th March, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not genuine. Entries have been taken by the beneficiaries by paying in cash an amount equivalent to amounts received through drafts/cheques and after paying certain premium on that. Assessee's name also figured in the list of such beneficiaries forwarded by the Investigation Wing and accordingly, the case was reopened under s. 147 of the Act. 3. The learned CIT(A) from paras 2.1 to 2.4 of his order reproduced as under, confirmed the action so taken by the AO: "2.1 I have considered the facts of the case and the arguments of the learned representative of the appellant. I have also gone through the case laws relied upon by the learned representative of the appellant. The learned representative of the appellant had argued that from the reasons recorded by the AO it is not established that the appellant had taken any bogus entry on the sale of shares and received the bank draft. Neither the basis of the information of Dy. Director of IT (Inv.), Wing had been supplied to the appellant nor any information in the possession of the Dy. Director of IT (Inv.) Wing had been made available to the appellant so that the appellant could give a proper reply in the matter. I am not in agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reopening by issuing notice under s. 148 is concerned, the reliance placed by the appellant on these two decisions is of no help. 2.2 In the case of Pradeep Kumar Har Saran Lal vs. Assessing Officer (1997) 141 CTR (All) 37 : (1998) 229 ITR 46 (All) the Hon'ble Allahabad High Court had observed as under: "There is much difference between an assessment and an intimation, as contemplated by s. 143(1)(d) and if it were not so then Parliament would not have used the word intimation as a substitute for assessment. While making assessment, the AO is free to make any addition, subject of course to giving an opportunity of being heard. By making adjustment under the proviso to s. 143(1)(a), no addition, not permitted by the information given in the return, can be made by the AO." The Hon'ble High Court have further observed as under: "We see no substance in this plea. Under s. 147, if the AO has reason to believe that any income chargeable to tax had escaped assessment then he is free to initiate reassessment proceedings. The only requirement of s. 147 is that the AO must have good reason to believe that some income had escaped assessment. Once this belief is well founded recou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Your letter No. P306/A, dt. 19th May, 1970, addressed to ITO, I Ward, Companies Dist. III, Calcutta. Please refer to your above letter seeking for some information about Jain Finance Distributors India (P) Ltd. This company is now assessed to tax in my Ward. I have, however, to inform you that, according to the confession of Shri Tara Chand Surana, managing director of the company, it appears that the so-called company is really a dummy concern of Shri Surana. The company never actually advanced any loans to any person and according to the confession of Shri Surana the business of the company consisted entirely of name lending. The company lent its name to enable different parties to bring into their books 'black money' under the guise of loan from Jain Finance Distributors (India) (P) Ltd. No finance was ever distributed. Only the name of the concern was lent. This position has been accepted in the assessment of the company for 1962-63, 1963-64. In the circumstances you are requested not to treat any transaction with this concern as genuine. I can furnish further information to you if you send me full particulars of transactions which you may be enquiring about. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, however, the facts are entirely different. From the communication of the jurisdictional ITO at Calcutta, it came to light that the managing director of the Calcutta company, Mr. Surana, had during the assessment proceedings of that company for the period 1962-63, 1963-64 and 1964-65, made a confession to the effect that he did not lend money to any party whatsoever. The information, therefore, was specific that no money had been lent to anyone during 1962-63, 1963-64 and 1964-65. Thus, the period during which the Calcutta company had only lent its name was specified. That period corresponded to the period during which the assessee had claimed to have received a cash loan of Rs. 50,000 from the Calcutta company. It is, therefore, not correct to say that the information available with the ITO, Azamgarh, in the present case was of the same vague nature as the information available with the ITO in ITO Ors. vs. Lakhmani Mewal Das. The judgment in ITO Ors. vs. Lakhmani Mewal Das, therefore, cannot advance the case of the assessee at all.' The Hon'ble Supreme Court have observed at p. 477 as under: 'From a combined review of the judgments of this Court, it follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at under the present provisions of s. 147 the condition that the assessee had not made a full and true disclosure is in no longer required to be satisfied for assuming jurisdiction under s. 147. I may also like to highlight the following observations of the Hon'ble Supreme Court: '..........one of the purposes of s. 147 appears to us to be to ensure that a party cannot get away by willfully making a false or untrue statement and when that falsity comes to notice, to turn around and say 'you accepted my lie, now your hands are lied and you can do 'nothing'. It would be a traversty of justice to allow the assessee that latitude.' 2.4 Now, coming to the facts of the present case, it is seen that information was received vide letter dt. 26th March., 2002 from the Dy. Director of IT (Inv.), Gurgaon as under: 'We have carried certain investigations with respect to entries of long-term capital gain taken by assessee in Faridabad from one bank account No. 8627 in Punjab National Bank, Karol Bagh, New Delhi. These entries of long-term capital gains have been shown as profit on account of transactions in shares. In most of these cases assessees have shown these entries as long-term c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re being supporting evidence for forming the opinion. The assessment cannot be reopened. It has been held by their Lordships in the case of ITO vs. Madnani Engineering Works Ltd. (1979) 12 CTR (SC) 144 : (1979) 118 ITR 1 (SC) and further report of the Investigation Wing without supporting material is no evidence for reopening the assessment as held by their Lordships of the Supreme Court in the case of Chhugamal Rajpal vs. S.P. Chawla Ors. (1971) 79 ITR 603 (SC), the learned AO rejected the assessee's submissions and proceeded with the assessment as it was a regular assessment. Before the CIT(A) also this was raised and various other cases were also cited. The learned CIT(A) vide para 2(1) of the CIT(A) order at page 6 held that the AO was justified in reopening the assessment and sufficiency of the reasons cannot be challenged and nor the assessee can be given a proper opportunity before reopening to confront him with the reasons for reopening the assessment. He referred to the various cases in his order from p. 1 to p. 11 and he rejected the assessee's contention but the facts remain that in the reasons recorded, there was no basis given for the belief and forming the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the AO has reason to believe that any income chargeable to tax has escaped assessment for any assessment year. Such a belief can be reached in any manner and is not qualified by the precondition of failure by assessee to make full and true disclosure of material facts as was contemplated under the unamended provisions of s. 147(a) of the Act. The AO, thus, can legitimately reopen the assessment in respect of income which has escaped assessment. The AO, thus, under the amended section has power to reopen the assessment even if the assessee had disclosed fully and truly all. material facts. The action in the present case in appeal has been taken under the amended s. 147 of the Act as amended w.e.f. 1st April, 1989 and as the action is found to be taken on bona fide reasons and was within the competence, of the exercise of jurisdiction by the AO. the action so upheld by the learned CIT(A), therefore, does not call for any interference by the Tribunal. This view finds support from 'the judgment rendered by Hon'ble Delhi High Court in the case of Rakesh Aggarwal vs. Asstt. CIT (1997) 142 CTR (Del) 272 : (1997) 225 ITR 496 (Del). 7. The apex Court in the case of Asstt. CIT vs. Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts taken into consideration by the AO were incorrect." 9. The Hon'ble Punjab Haryana High Court in the case of Shri Pal Jain vs. ITO (2004) 188 CTR (P H) 82 : (2004) 267 ITR 540 (P H) on identical information with respect to similar transaction with Maheshwari Sons against the action under s. 148, dismissed the petition of assessee. In that case, the Hon'ble Court has also considered both the judgments rendered by Hon'ble Supreme Court in the cases of Chhugamal Rajpal vs. S.P. Chaliha Ors. (1971) 79 ITR 603 (SC) and ITO Ors. vs. Lakhmani Mewal Das 1976 CTR (SC) 220 : (1976) 103 ITR 437 (SC), which have also been relied on by the appellant's counsel before us through his written submissions. It was found that in the case of Phool Chand Bajrang Lal Anr. vs. ITO Anr. (1993) 113 CTR (SC) 436 : (1993) 203 ITR 456 (SC) the Supreme Court at p. 473 has repelled the contentions taken by the assessee with respect to both the judgments of apex Court in the cases of Chhugamal Rajpal vs. S.P. Chaliha Ors. and Lakhmani Mewal Das. Significantly, the judgment rendered by apex Court in Phool Chand Bajrang Lal was a judgment from High Court of judicature at Allahabad reported as Ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and true disclosure of the primary facts was relevant, reliable and specific. It was not at all vague or non-specific." 10. In Shri Pal Jain vs. ITO the Hon'ble Punjab Haryana High Court noticed that the apex Court in Phool Chand Bajrang Lal's case, distinguished its earlier judgments as under: "The apex Court distinguished its judgment in Chhugamal Rajpal vs. S.P. Chaliha Ors. (1971) 79 ITR 603 (SC) on the ground that reassessment proceedings in that case had been initiated on the basis of a "circular" issued from the office of the CIT, Bihar and Orissa, which stated that three persons named in that circular were merely name lenders and their transactions were bogus and proper investigation regarding the loans from such persons was necessary before accepting the returns. The apex Court observed that such a circular 'by itself, without any other material and investigation, could not afford any basis' for forming reasonable belief that the assessee had not fully and truly disclosed all the relevant facts. As against such a general circular, the information received by the AO in Phool Chand Bajrang Lal Anr. vs. ITO Anr. (1993) 113 CTR (SC) 436 : (1993) 203 ITR 456 (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase of shares in the year under consideration. Furthermore, all the requisite details leading to the claim of bogus sale and purchase of shares and the bank account from which the accommodation entries have benefited the assessee, are clearly accompanied with the information and are fully spelt out in the orders of authorities below. The information on the basis of which the action under s. 148 has been initiated in the case of appellant, thus, was not vague as has already been found by us. The other judgments also relied upon by the assessee in his written submissions in the case of ITO vs. Madnani Engineering Works Ltd. (1979) 12 CTR (SC) 144 : (1979) 118 ITR 1 (SC) do not govern the issue in as much as the action taken under s. 147(a) in that case related to unamended section of a period prior to 1st April, 1989. In that case, ITO did not disclose in the reasons the material on the basis of which the belief was founded. Further more, the assessee had made a full and true disclosure of material facts but the same is not to be taken as conclusive for reopening assessment under s. 147 introduced w.e.f. 1st April, 1989 as also held by Hon'ble Delhi High Court in Rakesh Aggarwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant inconsistencies as regards the date of transfer to the name of assessee stated by the broker to be 6th April, 1993 through its bills dt. 13th April, 1993, but the transfer letter and the share certificates placed on record of the AO revealed the date of transfer to be 2nd June, 1993. 13.2 The assessee also claimed to have purchased 2,500 shares of M/s K.L.P. Finance Ltd. through broker M/s Maheshwari Sons on 2nd April, 1993 for which the said broker was stated to have raised bill on assessee on 16th April, 1993. The assessee claims to have made payment for purchase of these shares in cash on a subsequent date to the alleged purchase. The AO found significant inconsistencies in the transaction of purchase of shares in as much as the date of transfer of shares in the name of assessee indicated in the bill issued by Maheshwari Sons is 2nd April, 1993 and the assessee claimed its acquisition on 29th April, 1993 while the shares were found to have been transferred in her name on 9th Nov., 1993 as per copies of share certificates and a letter issued by said K.L.P. Finance Ltd. 13.3 All the shares of aforesaid companies are claimed to have been sold by the assessee through M/s M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rokers on 15th June, 1994, 19th Oct., 1994 and also another bill of the same date, i.e., 19th Oct., 1994. 16. During the course of assessment proceedings, the AO vide order-sheet entry dt. 21st Feb., 2003 required the assessee to furnish confirmations from M/s Maheshwari Sons regarding the transaction of shares made on behalf of the assessee. He was also required to furnish confirmations from M/s Prasidh Exports Ltd. and M/s K.L.P. Finance Ltd. regarding the genuineness of the shares transactions for which the assessee claimed her holding. Even on earlier date through a notice issued under s. 142(1) of the Act on 31st Dec., 2002, the assessee was also required to furnish documentary evidence with respect to the identity of the company whose shares have been transacted by the assessee along with confirmation of the share brokers, who are stated to have arranged the purchase and sale of shares for the assessee. The assessee, however, did not file any confirmations from the share brokers as well as from the said companies. At the instance of assessee notices under s. 133(6) of the Act were issued to the share brokers at their given addresses and also to Shri Shanker Hari Maheshwari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one Shri Maheshwari Sons by asst. yr. 1995-96 regarding.' The Dy. Director of IT has mentioned about the statement of introducer of bank account. This portion from the report of the Dy. Director of IT (Inv.) is being reproduced: 'The bank account opening form of this account has been obtained which is placed at pp. 57-59, Annex. 9. Examination of this form shows that it has been introduced by one M/s Hasija Gulati Associates. It has got two partners i.e., Shri Rajesh Gulati and Shri Sanjay Hasija. Their statements have been recorded on oath under s. 131 of IT Act (copies of their statements are enclosed as Annex. 4 and Annex. 5 respectively). They have staled that it was introduced by them on the request of Sri Praveen Mittal, a fellow chartered accountant. Q. No. 2. Do you have current account No. 8123 in Punjab National Bank, Karolbagh? Also, please state if you have introduced current account No. 8627 (Maheshwari Sons Prop. Shankar Hari Maheshwari), current account No. 8545 of Shakti Co. current account No. 8546 of Shivangi Co.: "If yes, please state your relationship with these persons. Ans. Yes, we have our current account in Karolbagh, Punjab National Bank. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is interesting to go through this statement above to understand and appreciate the exact modus operandi by which the entries regarding bogus capital gains were being provided. The relevant portion from the report of the Dy. Director of IT is being reproduced below: 'During the course of statement recorded on 11th Jan., 2000, he admitted that the current bank account Nos. 8546, 845 and 8627 in the names of M/s Shivangi Co., Shakti Co. and M/s Maheshwari Sons were got opened by him in Punjab National Bank, Karol Bagh, Delhi on the introduction of M/s Hasija Gulati Co. C.A. He further stated that he got the account introduced from them because he himself was not having any account in that bank. He further stated that except Shri Shanker Hari Maheshwari alleged account holder of M/ s Maheshwari Sons other two persons in whose name bank accounts of M/s Shivangi Co. and M/s Shakti Co. were operated. He further stated that Shri Shanker Hari Maheshwari came in his contact in 1994 and was previously having an office in Antriksh Bhawan C.P. New Delhi and on his reuest account No. 8627 in Punjab National Bank, Karol Bagh, New Delhi was opened. He further admitted that more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication forms to the clients. He used to pay certain commission to me for this work. After sometime, he requested to get bank account opened to peal in shares. Accordingly, I requested Hasija Gulati (Sanjay Hasija and Rajesh Gulati) to introduce these persons for opening account as I was pot having account in this bank." I would like to state that more than 95 per cent of the transactions from these accounts were pertained to bogus capital gains of shares which were given to different clients/assessees. These gains were taken by assessee because there is 20 per cent tax instead of higher rate of 40 per cent. Also most of the clients used it for house construction where such capital gain is exempted from taxation. In this way certain individuals/firms/companies took capital loss also to offset their business gains. Modus operandi was like this. In Shivangi Co. and Shakti Co. (these accounts were in the names of petty employees of Maheshwari, these boys used to distribute new issues forms on behalf of Maheshwari; most of the time cash was deposited which was received from different assessees in lieu of drafts/cheques which were issued to them in the name of capital gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived nominal payment. My help, to him was only because of friendly relationship. Moreover, I would like to say that in the process if I have committed any error. I may be excused.' A statement of Shri Maheshwari was recorded by the Dy. CIT, Circle-1, Aligarh on oath on 8th Dec., 1999 and a copy of this statement had been provided to the appellant also during the course of recording of her statement by the AO. Regarding transactions in respect of bank account in Punjab National Bank, Shri Shanker Hari Maheshwari denied the same and stated that somebody might have opened bogus account in his name and he had no relation with it. (Answer to query 11). Since Shri Maheshwari had completely denied any connection with these bank accounts, the AO, during the course of reassessment proceedings asked the appellant to produce documentary evidence in support of the income declared under the head long-term capital gains. The AO in particular had raised the following queries vide annexure to the notice under s. 142(1) dt. 31st Dec., 2002 which was issued along with a notice under s. 143(2) of the same date. 'Please furnish documentary proof/evidence in support of the identity of the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed exempt under s. 5F with source of investment therein. 3. Bank statement from Canara Bank and other apart from Federal bank and details of FDRs. 4. Confirmation regarding transaction of shares made by relevant stock broker. 5. Purchase deeds of plot sold during the year. Adjourned to 21st Feb., 2003 Sd/- On the left hand margin of the order-sheet the AO has mentioned: 'no reply given on 21st Feb., 2003.' On 21st Feb., 2003 as per the order-sheet entry of the even date it is seen that following queries have been raised further as under: 1. Confirmations from M/s Prasidh Exports and K.L.P. Finance Ltd. regarding distinctive numbers of the share certificates whether genuine or not. 2. To furnish confirmation from M/s Maheshwari Sons regarding the transactions of shares made on your behalf. Similar confirmation be given in respect of R.K. Goenka Co. 3. To furnish documentary evidences in respect of the share quotations on the particular dates of transaction. 3.2 In spite of being given opportunities again and again, the appellant did not file confirmation from M/s Maheshwari Sons the alleged stock broker. This fact has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that neither any confirmation from the broker could be filed nor any direct evidence from the companies could be produced regarding the transactions by the appellant. The appellant also wrote a letter dt. 20th March, 2003 informing the AO that M/s Maheshwari Sons had its address as Indira Market, Railway Road, Aligarh and Delhi office at MB 15, Antriksh Bhawan KG Marg New Delhi. It was requested that the broker be issued summons under s. 131. Regarding the M/s K.L.P. Finance Ltd. it was stated that the same had been purchased by M/s Fintra Capital Services Ltd., S-185, 2nd Floor, Greater Kailash Part-II, New Delhi. The mescapable conclusion from the above sequence of events is that the AO had given sufficient opportunity to the appellant to produce evidence in support of the transactions in shares. The appellant had failed to produce the desired evidence. The appellant therefore cannot say that principles of natural justice were not followed. 3.3 It may also be interesting and relevant to note the results of the inquiries made by the AO independently from various sources. It is seen that the AO had written a letter dt. 4th Feb., 2003 to the Branch Manager, Punjab Nationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rasidh Exports Ltd.) and Fintra Capital Services Ltd. (Formerly K.L.P. Finance Ltd.)'. Thus, the impression which the appellant was trying to create that these shares were regularly traded by quoting their share price does not appear to be correct. In fact there were no transactions in these shares on Delhi Stock Exchange for a period of about 1-1/2 years.' The AO had written a letter to the UP Stock Exchange Association Ltd. Kanpur asking for quoted price of one share each on M/s Prasidh Finance Ltd. and K.L.P. Finance Ltd. as on 6th April, 1993, 2nd June, 1993, 13th April, 1993, 15th June, 1993, 26th Sept., 1994, 19th Oct., 1994 and 30th May, 1994. The UP Stock Exchange Association Kanpur sent their reply vide letter dt. 12th Feb., 2003. The reply is being reproduced below: 'In this connection, we wish to inform you that as per our record the rate of the shares of M/s K.L.P. Finance Ltd. quoted only on 30th May, 1994 at Rs. 66 and no rates have been quoted of the shares of M/s Prasidh Exports Ltd. on the dates specified in your letter.' Thus, even on UP Stock Exchange, there was one single transaction as per the report received from the stock exchange. This will clearly sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as a request is made, it becomes incumbent on the AO to issue such summons in order to enable the assessee to avail of such opportunity. After such issuance of summons, if those were not responded to or were returned without service, the AO is free to take his own decision as he may deem fit and proper.' 3.6 The learned representative of the appellant stated that so far as the appellant was concerned she was not concerned with what the broker had done at his end. According to the learned representative of the appellant, what is relevant is the demand draft prepared by the broker's bank account either by broker himself or through any other persons on the instigation of the broker. The appellant is thus trying to show innocence with regard to the results of inquiries made by the Department. Such innocence is however not real and has to be seen in the totality of facts and circumstances of the case. If these were real transactions carried by the appellant then the appellant would have been able to produce some evidence with regard to the transactions of the sale and purchase of the shares. It cannot be a mere coincidence that the modus operandi described by Shri Praveen Mittal tal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has not pointed out as to what was the rate on the date on which the transactions were entered and what was the rate on the date of payment and any evidence in support thereof. The working of the amount of Rs. 53,376 (which is an odd figure) has not been given. The overall circumstances surrounding these transactions have to be seen. Since payments mentioned in the brokers note did not tally with the total of the amount of drafts received, the share transactions itself become doubtful if other factors as pointed out earlier are taken into consideration. It may also be noted here that in the statement of the appellant recorded on 27th June, 2003 the appellant had stated in answer to query No. 14 that her father had very good relation with the broker. Thus, the appellant is contradicting herself. At one place she has stated that there were very good relation between the broker and her father and at other place she is mentioning about a dispute with the broker. This also shows that the story made up by, the appellant does not ring true. 3.9 The learned representative of the appellant has also mentioned that the transactions were pertaining to the period of more than 9 to 10 years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o evidence on record to hold that the appellant had not purchased or sold the shares. It was just a presumption and opinion of the AO. This observation of the learned representative of the appellant is not correct. As discussed in detail while considering the issue of reopening of assessment it was clear from the fact that the AO had acted on accurate and specific information. It was not on the basis of opinion or presumption as the learned representative of the appellant is trying to show. 3.13 It may be also noted here that the appellant in her statement had stated that she was not knowing anything regarding the shares or purchaser or the seller. The transactions were entered on the advice of her father. It is very rare that the appellant could earn huge amount of capital gain on the advice of her father but there is no claim of any capital gain earned by the father of the appellant himself. It is a natural thing that if anyone is giving advice to some other person then he will also act on such advice especially when the gains involved are so substantive. 3.14 It is also interesting to note that there were hardly any transactions in these shares which is clear from the report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sajan Dass Sons vs. CIT (2003) 181 CTR (Del) 581 : (2003) 264 ITR 435 (Del) wherein it has been held that mere identification and showing movement through banking channels were not sufficient to establish the genuineness of gift. The Hon'ble High Court observed on pp. 38. 39 as under: 'We are unable to persuade ourselves to agree with learned counsel for the assessee. As rightly observed by the Tribunal, a mere identification of the donor and showing the movement of the gift amount through banking channels are not sufficient to prove the genuineness of the gift. Since the claim of gift is made by the assessee, the onus lies on him not only to establish the identity of the person making the gift but also his capacity to make a gift and that it has actually been received as a gift from the donor. Having regard to the inquiries conducted by the AO from the bank, with which the assessee was admittedly confronted and bearing in mind the fact that admittedly said Subhash Sethi was not related to the assessee, we are of the view that the findings recorded by the Tribunal are pure findings of fact warranting no interference. We find it difficult to hold that on the facts of the instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hare transaction operated upon through these accounts. Moreover, when it was stated in those statements that 90 to 95 per cent is bogus, then it is necessary that bogus entries have to be specified to link the person concerned. This statement relied upon by the CIT(A) has to be ignored as it has never been confronted to the assessee at any time, in view of the decision of the Supreme Court in the case of Kishinchand Chellaram vs. CIT (1980) 19 CTR (SC) 360 : (1980) 125 ITR 713 (SC). At p. 27 of his order, the learned CIT(A) has also relied on the statement of Shankar Hari Maheshwari, the broker in this case recorded by the Dy. CIT Circle 1, Aligarh on 8th Dec., 1999 in connection with some proceedings and query No. 11 of the said statement. The copy of this statement was supplied to the assessee and forms part of the paper book at pp. 29 to 33 of the first paper book. The assessee submitted the detailed objection on this statement both before the AO on 3rd July, 2003 in remand proceedings and before the CIT(A) on 10th June, 2003 in appeal proceedings that the statement of Shankar Hari Maheshwari does not in any way prove the Departmental case nor does go against the assessee so a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper book. In this case, entirely the same facts were there. Same share broker, same share certificate and same reopening under s. 148. The Hon'ble Tribunal cancelled the assessment under s. 148 holding that these evidences have no evidence for reopening and have held that the burden of proving in the reassessment proceedings lies on the Department, to establish that the transaction was bogus, which he has failed to prove. Similarly in another case of Tribunal, New Delhi SMC-I, ITO vs. Rajiv Aggarwal (2004) 89 TTJ (Del) 1095 : (2004) 139 Taxman 117 (Del)(Mag) in ITA No. 960/Del/2004 given at page Nos. 5-11 of second paper book of identical facts and cancelled the order of the AO of the same broker. In another case, the Hon'ble Tribunal in the case of ITO vs. Naveen Gupta (2006) 5 SOT 94 (Del) held that mere non-verification from the broker does not lead to the conclusion that the transaction was bogus when the company was listed company and copies of share certificate etc. were produced. There was no evidence to prove that the assessee has provided his unaccounted money surreptitiously to the broker or being deposited in his bank account to obtain the bank draft. Recently th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected. 21. We have heard the parties and perused the material on record with reference to the precedents cited at Bar. Perusal of impugned order reveals that the learned CIT(A) in his order in para 3.1 onwards discussed the modus operandi used in respect of accommodation entries for alleged sale and purchase of shares lo the beneficiaries. The appellant has been found to be one such person to have been benefited from such transactions. The statement of Shri Praveen Mittal who was a connecting thread between the bankers and the alleged broker. from where the cheques travelled to the beneficiaries' accounts has also been reproduced by the learned CIT(A) in his order. The glaring fact slated is that the shares were shown as purchased in cash by the assessee on nominal value in back date, i.e., approximate one year back. M/s Prasidh Exports Ltd. entered the name in back date. Cheques for gains were given from the account of Maheshwari Sons. Two concerns namely Shivangi Co. and Sakti Co. were in the names of petty employees of Maheshwari Sons where cash was deposited after receiving the same from different assessees in lieu of drafts/cheques issued from the account of Maheshwari S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 53,376 made under s. 69C of the Act, has recorded a finding of fact that the amount of Rs. 6,20,510 reflected in the contract notes from Maheshwari Sons is a paper entry relating to bogus transaction which factually never took place. The basis taken for allowing relief in that ground is not disputed by either of the parties and there is no appeal on that ground before the Tribunal. Taking entire facts, circumstances, human conduct, preponderance of probability and assessee's failure to prove the genuineness of transaction and discharge his onus, he upheld the decision of the AO that the transactions in sale of shares leading to claim of capital gains are merely accommodation entries and cannot be taken as genuine transactions and as such receipt so taken was assessee's income from other sources. 22. The judgments relied by the assessee before us are also of no assistance under the peculiar facts of this case. (i) S. Hastimal vs. CIT (1963) 49 ITR 273 (Mad) was a case on different facts where the assessee had produced indisputable documentary evidence to show that the amount of Rs. 15,000 came out of his borrowings at Jodhpur. The assessee has been able to point out a source f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent to support the genuineness of the transaction. In the appellant's case, however, the evidence to support the genuineness, despite opportunity, was not filed. (v) The Division Bench judgment rendered by Delhi Tribunal in the case of ITO vs. Naveen Gupta (2006) 5 SOT 94 (Del) the direct evidence from the managing director of the company had come on record of the AO and the shares were found duly transacted on that date from Delhi Stock Exchange. The assessee in that was also found to have discharged the initial onus cast on him. (vi) The order by Mumbai Bench 'F' in Mukesh R. Marolia vs. Addl. CIT (2006) 6 SOT 247 (Mumbai) relates to a case where Tribunal found that the assessee has maintained books of account and transaction both of purchase and sale of shares were duly reflected therein. The transactions were found to be off market transactions which were not illegal. The transactions were found made with the help of professional mediators who were experts in off market transactions. The case of the appellant before us does not have any such striking similarities. (vii) In the case of Sanjay Kumar Bansal vs. ITO in ITA No. 1476/Del/2004, Delhi Bench by its order dt. 29th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee also made no effort to bring on record the said broker despite sufficient opportunities having been afforded to him at various stages of assessment and even before the learned CIT(A), even though she is found to have been allowed credit on alleged purchase of shares for which payment was made in cash on subsequent dates to the alleged purchase. Likewise, for making the alleged sales long credits are found to have been given by her to the said broker. Thus, the assessee cannot say that she docs not know the broker or had no reach to him. Her statement recorded on 27th June, 2003 darning that she docs not know the share brokers or the persons with whom the said transaction were entered, thus, runs counter to the facts. Any inability now being posed is merely a pretence. The assessee is, thus, found to have not come before the authorities with clean hands and has tried to use an escape route requiring the Revenue to chase the broker without discharging her own initial burden first for proving the correctness, truthfulness and genuineness of the transaction and even the confirmation of transaction despite notice under s. 142(1) and sufficient opportunities to her were furnished. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave offered the amounts of such receipts as their income for taxation under the head income from other sources. The Revenue authorities have also looked into the surrounding circumstances to find out the real and factual position which is found to have rightly been done when examined in the light of judgment rendered by apex Court in the case of CIT vs. Durga Prasad More 1973 CTR (SC) 500 : (1971) 82 ITR 540 (SC). The story of the appellant, therefore, did not ring true and could not have been accepted by any reasonable person, instructed in law. The glib explanation of the assessee which is teeming with improbabilities and strenuous on credulity thus cannot be accepted. We, therefore, are of the considered view that the conclusions on this issue reached by the learned CIT(A) need no interference. Under the peculiar facts, circumstances and findings of the case and the appellant having not discharged its primary onus that lay on her to produce confirmation or any credible evidence to support the transaction, no merit is found in ground Nos. 2 and 3 raised by her. The same, therefore, stand rejected. 24. As regards ground Nos. 4 and 5, the learned CIT(A) vide para 5.1 did not acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en, the exemption under s. 54F was not available for this reason also." 25. The assessee's counsel Shri Agarwal while assailing the order of learned CIT(A) contends that the holding of shares is for the period of more than 12 months and the transfer having been registered in the name of assessee has to be taken for a period of 12 months. Once the completion of transaction has been done by having the name entered in the register of members, the transfer shall relate back to the time when it was first made. Reliance has been placed to the judgment rendered by apex Court in the case of Howrah Trading Company vs. CIT AIR 1959 SC 775. Furthermore, even if ultimate buyer of the shares is not known, the claim for s. 54F cannot be denied as has been held by Lucknow Bench of Tribunal in the case of Rajendra Singh vs. Asstt. CIT (2003) 80 TTJ (Lucknow) 625 where in the gift-tax matter, the Tribunal has held that the transfer of property in the shares to the transferee gets completed by the delivery of the share certificates and execution of transfer deed etc. 26. On the other hand, the learned Departmental Representative relies on the findings reached by the authorities below. 27. We h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied upon, I find myself unable to concur with the reasoning and finding on facts qua ground No. 1. However, the conclusion is agreed upon. The reason for the same shall be set out separately subsequently. 2. Apart from that qua ground Nos. 2, 3, 4 and 5, the reasoning, findings on facts and conclusions are not agreed upon. 3. The conclusion arrived at in the proposed draft order in regard to ground No. 1 is concurred with specifically relying upon the judgement of the Hon'ble Delhi High Court in the case of CIT vs. Vipin Batra (2007) 212 CTR (Del) 557 : (2007) 293 ITR 389 (Del) for the reasons set out in detail subsequently. The reasons set out on the proposed draft order and appreciation of facts done therein in regard thereto are not agreed with. Respectfully following the judgment of the Hon'ble Delhi High Court on facts as herein also in view of the information with the AO the name of the assessee was specifically mentioned as a beneficiary of cheque/draft issued from a specific bank account in these facts the AO had valid reasons for the reopening. A perusal of the said judgment of the Hon'ble Delhi High Court would show that their Lordships have not upheld the action of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o justify the reopening was not given to the assessee. 8. Referring to what was made available to the assessee it was submitted that only one copy of the statement of some Shankar Hari Maheshwari recorded by Asstt. CIT, Aligarh Shri N.R. Nirmal, was given to the assessee. It was submitted that in regard to the same the assessee had filed written reply before the AO. 9. It was also pointed out that in the statement of Shankar Hari Maheshwari recorded by Shri N.R. Nirmal there were many contradictions apart from that the said statement was recorded at Aligarh whereas the ITO justifying the reopening on the other hand refers to investigation report of Dy. Director of IT (Inv.) at Faridabad. 10. As per the material available on record it was further submitted that the report of the Dy. Director of IT (Inv.), Faridabad, taken into consideration by the AO was not relevant as it was in some other matter as such that statement has no basis for reopening the case of the assessee. He also raised the issue that whether statement confronted to him was of the same Shankar Hari Maheshwari or of some other person with the same name as he did not acknowledge the specific bank account of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s at 21, Bara Khamba Road, New Delhi and also at Aligarh or is some other Shankar Hari Maheshwari. There is no identification of Shankar Hari Maheshwari in the statement recorded." 14. Apart from the above, it was also contended that the statement was recorded in the case of a third party with which the assessee has no concern. Moreover, it was a general, statement without any cross-verification and cross-examination of this statement made available to the affected party. On the basis of these submissions it was contended that the statement is wholly unreliable and has no value with reference to the assessee's transactions as such a request was made that Shankar Hari Maheshwari should be produced for cross-examination so that the facts narrated by him can be controverted. Without the said effort it was submitted the statement has no evidentiary value. 15. In regard to the conduct of the assessee it was submitted that the demand drafts were received from the broker which were duly credited in assessee's bank account and the assessee is not concerned with what the broker has done at his end. The relevance of the fact whether true or not was questioned by the assessee in raising i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own as profit on account of transactions in. shares. Taking note of the modus operandi and statements of introducers of bank account i.e. of Sh. Parveen Mittal and considering the statement of Shankar Hari Maheswari available with the Department the action was held to be specific and to the point. 18. On facts, the CIT(A) reproduced the relevant portion from the assessment order in pp. 13 to 16 of the impugned order. A perusal of p. 16 further shows that the assessee submitted that these shares were purchased for a total consideration of Rs. 69,690 and the said amount was duly debited in the books of account of the assessee for the asst. yr. 1998-99. 19. These shortcomings considered by the AO and taken into consideration by the CIT(A) as per the material available on record were addressed by the assessee before the AO contending that the quotations of the share duly appeared in the daily newspaper "Dainik Jagran", Meerut dt. 27th Sept., 1994. The sale proceeds of these shares was received by bank draft aggregating to Rs. 5,67,134 and the balance amount of Rs. 53,356 had not been received from the broker. On account of this fact there was a dispute between the parties as the br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The genuineness of the transactions it was submitted cannot be erased on account of this oversight. 25. It was contended that the actual date of purchase and sale is to be seen from the contract note which is a document of primary entry on the basis of which bills are subsequently raised at the convenience of the broker as such the date of the bill does not lead to any adverse inference. It was also submitted that the bills are duly signed at the left side and the AO lost sight to look into that part. 26. In regard to the objection in para 5 of his order it was submitted that the demand drafts had been prepared from two bank accounts of the broker held by him and sale proceeds were received by the assessee through demand drafts. The amount received was short by Rs. 53,376 on account of which a dispute was going on with the broker due to fluctuation of sale rate, as such, the broker retained that amount and did not pay the same to the assessee. 27. Similarly, in regard to the objection in para 6 of his order that the receipt of sale proceeds after one or two months delay it was submitted that it does not affect the genuineness of the transaction as the amount is paid by the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Mehta Ready Reckoner of K.L.P. Finance and Garg Ready Reckoner of Prasidha Export and Dainik Jagran for sale price. Thus, the identity of these shares or the companies and their purchases and sale rates on those dates are fully established. 4. Under these circumstances, the charge of the ITO that the assessee has not proved the identity of the company or the share broker is wholly baseless. The sale of shares is proved from the bank account of Maheshwari Sons from where the demand drafts were prepared which were received by the assessee. There is no evidence on record to prove that the assessee provided cash to Maheshwari Sons for the preparation of the draft. 5. The AO never supplied any information much less the statement of anybody to controvert the inference drawn by him or by the Dy. Director of IT. Consequently in view of the decision of Special Bench of Hon'ble Tribunal Hyderabad Bench in the case of Colonisers vs. Asstt. CIT (1993) 45 TTJ (Hyd)(SB) 114 : (992) 41 ITD 57 (Hyd)(SB) that evidence cannot be used against the assessee and the assessment based on that evidence is wholly illegal and bad in law." 30. On the basis of the above it was contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er general practice prevalent the transactions were finalized through the broker party to party. Referring to the information available with the AO that these shares were duly quoted and the rates were almost the same when compared to the rates at which the assessee sold through the broker was relied upon. It was submitted that these all are matter of record with the AO who has not cared to refer specifically to his own record, as such, the assessee's case stood proved by these facts. The above submissions are found discussed in p. 22 of the impugned order. 36. However, not convinced, the CIT(A) proceeded to confirm the action of the AO referring largely to the report of the Dy. Director of IT (Inv.), Gurgaon on the basis of which it was observed that the bank account 8627 in Punjab National Bank, Karolbagh, New Delhi had been introduced by M/s Haseeja Gulati Associates who had two partners Shri Rajesh Gulati and Shri Sanjay Haseeja. The partners of the said firm had stated under oath that they introduced the proprietor of Maheshwari and Sons to the bank. Shri Rajesh Gulati stated that he met Shri Shankar Hari Maheshwari of Aligarh with Shri Praven Mittal, as such, in the intro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cent instead of 40 per cent. He also stated that the clients applied these funds for house construction etc. He also stated that the accounts of Shivangi Co. and Shakti Co. were in the names of petty employees of Maheshwari and most of the time cash was deposited in lieu of drafts/cheques as such these petty employees Rajesh and Mukesh were sent to the bank for depositing cash and getting drafts etc. These boys were stated to be around 22-23 and 23-24 whose present addresses were not known. It was again repeated by him that 95 per cent of the transactions were bogus in the case of M/s Prasid Exports Limited and Shri Praveen Mittal stated that he had come in contact with Sanjay Mittal, C.A. on account of whom he came in contact with this company. The CIT(A) as per p. 27 of the impugned order also referred to statement recorded by Dy. CIT, Circle-1, Aligarh on oath on 8th Dec., 1999. Reference was made to the fact that in respect of the transactions in the Punjab National Bank account Shri Shankar Hari Maheshwari denied the same and stated that somebody might have opened bogus account in his name and he had no relation with it. Since Shankar Hari Maheshwari denied the ownership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again took note of the fact that the letters written by the AO to M/s Maheshwari Sons could not be served and were returned back by the postal authorities. Same was the fate of the letter addressed to R.K. Goenka Co. for confirming the purchase of the transactions. The reply of the Delhi Stock Exchange that between 6th April, 1993 to 19th Oct., 1994 transactions in the shares of Asian Overseas Securities (formerly Prasidh Exports Ltd.) and Fintra Capital Services Limited (formerly M/s KCP Finance Ltd.) did not take place. The response of the UP Stock Exchange Association, Kanpur that the rate of share of M/s K.L.P. Finance Limited was quoted on 30th May, 1994 at Rs. 66 and for the dates specified by the AO share of M/s Prasidh Exports was not quoted. In these facts, the CIT(A) was of the view that the primary onus of the assessee to furnish the evidence in support of its claim has not been discharged. The assessee was required to produce the confirmation alternatively he could have produced the broker as such the claim was rejected as per p. 32 of the impugned order. 40. The submissions of the assessee that there were contradictions in the statement of Shri Maheshwari were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee she ought to have regularly carried on the activity had it been genuine. The argument that it was done only during the boom period was not accepted. Cognizance was also taken of the fact that in similar facts some other assessee surrendered such income and since the assessee had failed to give names and addresses of the buyers to whom the broker sold the shares the addition of the said amount was made under the head undisclosed income. 44. Thus, as observed earlier in the abovementioned peculiar facts and circumstance of the case, I find myself unable to concur with the reasoning and finding arrived at in para 12 of the proposed draft order in regard to ground No. 1. In the facts of the present case no doubt the judgment of the Hon'ble Delhi High Court in the case of CIT vs. Vipin Batra (2007) 212 CTR (Del) 557 : (2007) 293 ITR 389 (Del) may apply as far as the reopening is concerned to the extent that as per the information from the Dy. Director of IT (Inv.) Gurgaon the assessee was one of the beneficiaries from the stated bank account. However, once the information is evaluated it is seen that as per the statement available on record at pp. 29 to 33 of Shri Shankar Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch Shri Praveel Mittal as per his statement on record he used to visit. Thus, this Sanjay Mittal introduced Shankar Hari Maheshwari to Praveen Mittal who further requested his friend Haseeja Gulati to introduce Shankar Hari Maheshwari to their banker for opening an account. The casual introduction does not lead to any evidence so as to infer that Shri Praveen Mittal had any occasion to acquire intimate knowledge and information of Shankar Hari Maheshwari's business, so that he could be believed to be in a position to state that 90 per cent of the transactions are bogus. At other places he has been confident enough to revise his own estimate so as to state that 95 per cent transactions of Shankar Hari Maheshwari are bogus. The assessee has specifically assailed the irrational and the irresponsible reliance placed by the Department upon a person who has casually befriended Shankar Hari Maheshwari during a certain period of time and has on the basis of that friendship introduced him to his friends for opening back accounts. It is seen that no efforts have been made either by Shri Praveen Mittal to lead evidence to show the basis of his belief and knowledge and unfortunately no efforts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ored simply because some persons for shortcomings or inabilities in their case have surrendered to avoid the harassment posed by the reliance placed by the Department on the selective assertions of Shri Shankar Hari Maheshwari or careless unsupported categoric statements of Shri Praveen Mittal without first making even an iota of effort to establish that he was in a position to give the statements so given cannot be held against the assessee. Disregarding the assessee's documents for the reason that the assessee did not file the confirmations from the broker in the peculiar facts is also not justified as there is nothing on record to show that the assessee was ever in a position to compel the broker with whom she had only a passing interaction limited to the activity of sale of shares that too through her father. Thus, the limited interaction of the assessee through her father with a broker does not lead to the situation that the assessee necessarily needed to maintain contact with the brokers in future for all times to come. It has to be kept in mind that the broker may or may not continue business may or may not change address on all these actions neither the assessee has any con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved certain sums by way of demand drafts. This limited information for reopening even if considered for the sake of an argument to be sacrosanct which was available all along with the Department does not lead to the conclusion in any way whatsoever that the Department had evidence available with it to sustain the addition holding that the assessee was one of the people who specifically forms part of the 90 to 95 per cent of the transactions which were bogus as per the personal unsubstantiated knowledge of a third person i.e. Shri Praveen Mittal to the transaction. Shri Praveen Mittal was a person with whom the assessee never had an occasion to interact at all nor has Shri Praveen Mittal named the assessee as belonging to the category of 90-95 per cent of bogus transactions of Shri Maheshwari of which Shri Praveen Mittal was presumbaly aware. The fact that Shri Praveen was in no position at any point of time to comment upon the genuineness or lack of genuineness of the transaction of the broker Shri Shankar Hari Maheshwari has as addressed been completely ignored all along. At the cost of repetition he was never also made available for cross-examination to the assessee. 45. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not in the 10 per cent 5 per cent category of genuine transactions is missing. Thus even if the unsupported assertions of the Department are to be believed that some of the transactions of Shanker Hari Maheshwari were bogus or for that matter most of the transactions were bogus, the crucial issue is to be considered in each and every case independently on the basis of evidence that a specific case fell in the category of a bogus transaction. Even that effort is missing. In the facts of the present case qua the assessee no such assertions by the persons who were witnesses of the Department have ever been made. 47. The stand of the assessee that the issue is fully covered in favour of the assessee by virtue of the orders of the Co-ordinate Bench of the Tribunal some of which have had an occasion to consider the same bank account of same broker and same period is a matter of record. Specific reference was made of the order dt. 29th Oct., 2004 in ITA 1476/Del/2004 in the case of Sanjay Kumar Bansal vs. ITO, copy of which is placed at pp. 269 to 272 of the paper book. Apart from that in regard to the insistence of the Department for the assessee to get the confirmation from the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of brokers, share certificates etc. placed at pp. 49-188. On the basis of these pages it was emphasised that there were no discrepancies and the difference in amount is due to the fact that the broker did not pay the differential and disputed the amount due to the assessee. The specific sale bills were referred to demonstrate that brokerage on each of the occasions has specifically been charged and paid by the assessee to the broker the suspicion that no brokerage was charged was disputed. 48. In the above background it is necessary to first consider orders of the Tribunal on the basis of which the stand taken on behalf of the assessee is that the issue is covered to the extent that the Co-ordinate Bench of the Tribunal has had an occasion to consider the very same bank account, the very same broker, the very same shares and facts are identical in regard to documentation. Reliance has been placed upon the very same statements of the two witnesses of the Department which have been considered so as to agitate that the present Bench also is bound to follow the order of the Co-ordinate Bench and discard the statements. Therein also the identical statement of Shri Maheshwari disowni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exist as a broker and did not do any genuine work as broker. Based on identical evidence and facts the argument by the Department and the finding given in the proposed draft order thereon cannot be concurred with as this would not only be contrary to the material available on record of the Department itself but also be in conflict with the reasoning and finding arrived at by the Co-ordinate Bench on identical facts on the tame facts and evidences apart from the specific reasons and judicial principles discussed at length in the earlier part of this order. 49. Reference in this regard may also be made to the order of the Co-ordinate Bench of the Tribunal in ITA No. 881/Del/2004, dt. 28th May, 2004, in case of Sunita Gupta which has been followed by the Division Bench in the case of Sanjay Kumar Bansal vs. ITO, in ITA No. 1476/Del/2004 dt. 29th Oct., 2004. copy of which is placed at pp. 269 to 272 of the paper book which has been referred to in the earlier order. A perusal of these orders at the cost of repetition would show that the Co-ordinate Benches of the Tribunal have taken cognizance of the fact that the statement of Shri Praveen Mittal the person on whose request the assoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er book is being reproduced hereunder. In the said order the Co-ordinate Bench has reproduced the finding arrived in ITA No. 881/Del/2004, dt. 28th May, 2004, the reference made thereto is also in the reproduction being made: "(3) At the outset, the counsel for the assessee submitted that a similar addition made by the Revenue in the hands of one Smt. Sunita Gupta has been adjudicated by the Tribunal in its order in ITA No. 881/Del/2004, dt. 28th May, 2004 in favour of the assessee. The counsel vehemently argued in the case of Smt. Sunita Gupta the entire addition was made on the basis of the statement of Shri Shankar Hari Maheshwari and the same has not been approved of by the Tribunal. The impugned addition also stands on similar footing. We have considered the rival submissions. At the outset, we find that the primary material with the AO to make the impugned addition was the statement of Shri Shankar Hari Maheshwari recorded by the Dy. Director of IT (Inv.) wherein he admitted that no sale/purchase of shares was carried out by him and that he was a petty person doing 'Dalali' business. With respect to the bank account No. 8627 maintained with Punjab National Bank, Arya Samaj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the broker), Shri Praveen Mittal, Shri Rajesh Gulati or Shri Sanjay Hasija that the assessee had not purchased or sold the shares or that the assessee had paid cash equivalent to the amount of sale price and also the alleged premium either to Shri Maheshwari or to any of the other three persons. The extract of the report of the Dy. Director of IT which has been made part of the assessment order and the reasons recorded also do not make out a case against the assessee. In case there was any finding of the Dy. Director of IT against the assessee it was without even a grain of evidence. The AO had placed much reliance on the statement of Shri Shankar Hari Maheshwari wherein he had denied the ownership of account No. 8627 with Punjab National Bank. but failed to rely on the statements of Shri Praveen Mittal, Rajesh Gulati and Sanjay Haseeja, wherein they have amply stated that account No. 8627 belonged to Shri Maheshwari. The AO's failure to make further enquiries in this regard cannot be used in favour of the Revenue. Further, Shri Praveen Mittal at p. 5 of his statement having confirmed that the share certificates in the name of assessee who had come for taking capital gain or capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim that the Dy. Director of IT also was not having any evidence against the assessee. In any case, even if the Dy. Director of IT had mentioned the name of the assessee in his report then also the same being on mere suspicion could not be interpreted so as to show that the information or evidence was of such a degree which could lead the assessee either to arrive at a finding that the share transactions entered into by the assessee were bogus. 10. In the totality of the facts and circumstances I am fully in agreement with the findings of the CIT(A) and consequently his order so far as deleting the addition is concerned, is confirmed subject to the outcome of cross objection of the assessee. While the learned Departmental Representative has defended the orders of the lower authorities but he has not controverted the above factual matrix brought out by the counsel for the appellant. At the time of hearing the learned Departmental Representative also did not dispute that the circumstances of the instant case stand on similar footing with those of Smt. Sunita Gupta. Therefore. concurring with the decision of the Tribunal in the case of Smt Sunita Gupta, the impugned addition is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to in the earlier part of the order, reliance has also been placed upon the order of the Tribunal in the case of ITO vs. Rajiv Aggarwal copy of which is placed at pp. 262 to 268. The said case was also in the context of statements given by Shri Shankar Hari Maheshwari and Shri Praveen Mittal. A perusal of p. 265 of the said order would show that the Tribunal considered the following reasons which were taken into consideration by the AO namely: "(a). The statements recorded by the Dy. Director of IT (Inv.) of Mr. Shankar Hari Maheshwari and Mr. Praveen Mittal. (b). The assessee did not furnish the address of the said company. (c). The assessee could not adduce evidence in support of his claim of purchase of shares. (d). The assessee failed to adduce any evidence regarding transfer of shares in his name. (e). The assessee has failed to even furnish the name and address of the person to whom the shares were sold." 53. The Co-ordinate Bench of the Tribunal considering the following arguments of the assessee allowed the claim of the assessee therein: "7. On the other hand, the learned Authorised Representative has defended the order of the CIT(A). He argued that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses were placed before the AO. The AO has not made any comment regarding these documents and no effort was made by him to cross-verify the evidence from the concerned company. The failure to cross-verify cannot lead to a conclusion that the transaction was not entered into. The assessee was a shareholder of the company. He was neither a director nor was he in control of this company. He was simply an investor, having purchased shares in the year 1993 and sold the same in 1995. It is none of his business and onus to keep tract of each of the companies in which investment has been made. There is no material and evidence on record to support the allegation of the AO that the investment made in the company and the company in which investment was made was not genuine. The contention of the AO that the company was not traceable is factually incorrect in as much as the company was a registered company with the Registrar of Companies. The shareholder cannot enforce the attendance of the company in which investment has been made in the capacity of a shareholder. As regards the statement of Mr. Praveen Mittal, the learned Authorised Representative argued that Mr. Praveen Mittal was not the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue. The sale of shares is through a broker. The rate at which the shares were purchased and sold is also not in dispute. The payment has been received through account payee cheque. All these facts are borne on record and accordingly the assessee has discharged his onus. On the other hand, the AO has not brought any material in support of his allegation that the transaction was not genuine. The mere reliance on the statement of third parties who were never examined by the AO himself cannot be held to be sufficient to come to the finding that the transaction was not genuine and more so when there are other material and evidences to support the transaction. It is settled law that suspicion howsoever strong cannot take place of legal proof as has been held by the Hon'ble Supreme Court in the case of Umacharan Shaw Bros. vs. CIT (1959) 37 ITR 271 (SC). In this case the AO has not brought any evidence which can even remotely suggest that the material placed before him was unreliable suffered from defects or was inconsistent. The learned Departmental Representative also could not point out any infirmity in the findings given by the CIT(A) as well as the documents and evidences filed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er as he had only passing knowledge and had no occasion to glean intimate knowledge of Shri Maheshwari as he came in contact only through Sanjay Mittal who was a friend of Praveen Mittal whom as per the version offered by Praveen Mittal confronted to the assessee by the Department he used to visit at Antariksha Bhawan, New Delhi wherein he came to be introduced by Shri Sanjay Mittal to M/s Maheshwari Sons i.e. Shankar Hari Maheshwari who too had an office in Antariksha Bhawan and was a broker and registered with the UP Stock Exchange at Kanpur who was dealing in new share issues. Thus this passing introduction/interaction on the basis of which he required his friends Haseeja and Gulati to introduce him i.e. Shankar Hari Maheshwari to their bankers i.e. Punjab National Bank Karol Bagh does not put Shri Praveen Mittal in a position to claim intimate personal knowledge of the functioning of M/s Maheshwari Sons so as to reliably convey that 90-95 per cent of their shares dealing was bogus. The assessee's case is stronger than the one relied upon namely the case of Ashok Kumar Agarwal wherein the statement of the director himself of M/s J.R.D. Stock Brokers (P) Ltd. was disregarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions done through them. The assessee's transactions with the respective brokers were on a very small scale. It has consistently been argued on behalf of the assessee that her father knew the brokers and she acted as per the advice of her father and she after the boom period in the sector had no dealings in shares or with the share brokers either before or thereafter. No evidence has been led by the Department to disprove this submission. It is not the case of the Revenue that the assessee over the years has consistently been dealing with the said share brokers. Similarly, the reasoning that summons issued to the parties came back unserved cannot be held against the assessee as whether the share broker continues the business or discontinues the same or changed the addresses or for that matter the companies whose shares were purchased and sold changed their premises or names as changed by virtue of being acquired by some other company the assessee cannot be held liable to stay in touch for all times to come. The assessee was never either a director with them or had by virtue of shareholding ever been in such a position to ensure that the future contact, existence of the companies sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther was advising her and knew the broker did not sign the sale bill. The argument has been advanced on the basis of material available on record in support of the claim that as per company law the shares at the relevant point of time stood transferred on delivery by the broker as it was that date to be reckoned and not the date on which the company made the necessary entries in their records. Reliance has been placed upon the judgment of the apex Court in the case of Howrah Trading Co. Ltd. vs. CIT copy of which is placed at pp. 223-229. In that context in support of the period of holding reliance has also been placed on the order of the Co-ordinate Bench in the case of Rajendra Singh vs. Asstt. CGT. Accordingly, in the facts of the case on a perusal of the documents available on record addressed at length in the written submissions the claim of the assessee in regard to the period of holding has to be allowed. 60. The facts pertaining to the next issue addressed by the assessee are set out in pp. 4 to 5 of the assessment order of para 12 and in pp. 40 to 43 of the impugned order in paras 5 and 5.1. For the sake of convenience it is considered necessary to briefly refer to them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee namely, the house was used for self-residence of the assessee after its purchase and hence exemption under s. 54F was available in respect of the sale proceeds of the shares. In the circumstances the AO was not justified in holding that since the house was in a commercial building exemption was not available to the assessee. Specific attention was invited to the fact that the said premises utilised for residential purposes had kitchen and toilets and was capable of being used as a residential premises. 63. The assessee as per the impugned order advanced the following arguments as reproduced at pp. 41 and 42 of the impugned order: "In this regard, the assessee filed an affidavit before the AO and submitted that this house was used by the assessee for residential purposes for three years and the house is well furnished with kitchen, toilet etc., which was used by the assessee for residential purposes for three years. Later on the assessee shifted to her father in law's house at 305, Navjyoti Apartment, By-Pass Road, Agra and the assessee has no residential house during this period. In Sanjay Place where the house is situated, many commercial buildings are being use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that this is on record that the assessee was residing in the same even though it was commercial building because there was no prohibition for residing in commercial building. All the facilities of residence existed therein i.e., bathroom, toilet, kitchen and bedrooms etc. The local inquiries were also made by the ITO after Your Honor's remand order from the ITI. To assessee's knowledge this fact of residence by the assessee has been duly confirmed by the persons of the nearby houses. In assessee's statement recorded by the AO has also confirmed the same facts. The exemption under s. 54F is available for the purposes of house used for residence only when there is no mention in the section that it should not be a commercial building. As such this exemption has been rightly claimed." 65. Considering these submissions the CIT(A) proceeded to reject the claim of the assessee in terms of para 5 of the impugned order which has been reproduced in the proposed draft order at pp. 39 and 40 vide para 24 thereof. 66. Still aggrieved the assessee is in appeal before the Tribunal. The learned Authorised Representative apart from relying on the submissions made before the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on behalf of the assessee. On behalf of the assessee it has been specifically assailed that there was no bar for utilizing the said property as a residential property even though it was situated in a commercial block argument has been before the CIT(A). It has also not been doubted by the tax authorities that the said property consists of bedrooms, toilet and kitchen etc. and local inquiries as per the remand report of the ITI acknowledge this fact. The assessee as such has successfully demonstrated that it was a well furnished house and has also not disputed that later on she has shifted along with her family to her father-in-law's house at 305, Nav Jyoti Apartment. Bye-Pass Road, Agra. It is also a matter of record that the assessee had no other residential house during this period. In the circumstances merely giving of the address in the return of income for the year under consideration as 305. Nav Jyoti Apartment. Bye-Pass Road which is the address of her father-in-law's house by itself does not detract the claim of the assessee. The address given in the returns filed normally is the permanent address which by and large generally is the parental address as such giving the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove the genuineness of transactions in shares of M/s Prasidh Exports and K.L.P. Finance Ltd. or that the burden had shifted on the Revenue that can be held to have not been discharged by them? 2. Whether on the facts, findings, circumstances of the case and in law the decision to uphold the assessability of alleged profit on alleged shares of M/s Prasidh Exports and K.L.P. Finance Ltd. as income from other sources instead of the assessee's claim to capital gains is a correct decision or not? 3. Whether on the facts, findings, circumstances of the case and in law the assessee's ground Nos. 2 and 3 in appeal before the Tribunal have rightly been rejected or decision to allow the same is correct? 4. Whether on the facts, findings, circumstances of the case and in law the decision of the learned CIT(A) to deny benefit under s. 54F of the IT Act, 1961 has rightly been upheld or that the ground in appeal by assessee on his claim is correctly allowed?" 2. On investigations with respect to entries of long-term capital gains taken by the assessee in Faridabad from bank account No. 8627 in Punjab National Bank, Karol Bagh, New Delhi, it was found that the said bank account exists in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee however, had failed to produce the desired evidence. He also noticed that it was the primary onus of the assessee to furnish evidence in support of its claim which she failed to discharge. The summons issued on the brokers. at the instance of assessee, at their given addresses were merely to facilitate her but the same also have returned unserved. He also found that the assessee on her own has not been able to bring any evidence in support of her claim regarding these transactions which the record clearly revealed them to be bogus and arranged for by the assessee. Even the payments mentioned in the brokers note did not tally with the amounts of drafts received. By taking the circumstances surrounding these transactions which are fully narrated in his order, the share transaction itself was not held to be a genuine transaction. He, therefore refused to give any advantage to the assessee of her own designs. The assessee also did not give the names and addresses of the buyers of these shares which he claims to have transacted through brokers M/s Maheshwari Sons. He while deleting the addition of Rs. 53,376 made under s. 69C of the Act, has recorded a finding of fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of shares for which payment was made in cash on subsequent dates to the alleged purchase. Likewise, for making the alleged sales long credits are found to have been given by her to the said broker. Thus, the assessee cannot say that she does not know the broker or had no reach to him. Her statement recorded on 27th June, 2003 claming that she does not know the share brokers or the persons with whom the said transaction were entered, thus, runs counter to the facts. Any inability now being posed is merely a pretence. The assessee is, thus, found to have not come before the authorities with clean hands and has tried to use an escape route requiring the Revenue to chase the broker without discharging her own initial burden first for proving the correctness, truthfulness and genuineness of the transaction and even the confirmation of transaction despite notice under s. 142(1) and sufficient opportunities to her was not furnished. It appears that the assessee has chosen to keep him at the back seat and made no effort herself to contact him even though the latest whereabouts of that person had come to her knowledge through another order of learned CIT(A) in certain other cases nor any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been done when examined in the light of judgment rendered by apex Court in the case of CIT vs. Durga Prasad More 1973 CTR (SC) 500 : (1971) 82 ITR 540 (SC). The story of the assessee, therefore, did not ring true and could not have been accepted by any reasonable person, instructed in law. The glib explanation of the assessee which is teeming with improbabilities and strenuous on credulity thus cannot be accepted. We, therefore, are of the considered view that the conclusions on this issue reached by the learned CIT(A) need no interference. Under the peculiar facts, circumstances and findings of the case and the assessee having not discharged its primary onus that lay on her to produce confirmation or any credible evidence to support the transaction, no merit is found in ground Nos. 2 and 3 raised by her. The same, therefore, stands rejected. 5. The JM. on the other hand did not agree with AM. She held that on the facts of the present case no doubt the judgment of the Delhi High Court in the case of CIT vs. Vipin Batra (2007) 212 CTR (Del) 557 : (2007) 293 ITR 389 (Del) may apply as far as the reopening is concerned to the extent that as per the information from the Dy. Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quire intimate knowledge and information of Shankar Hari Maheshwari's business so that he could be believed to be in a position to state that 90 per cent of the transactions are bogus. At other places he has been confident enough to revise his own estimate so as to state that 95 per cent transactions of Shankar Hari Maheshwari are bogus. The assessee has specifically assailed the irrational and the irresponsible reliance placed, by the Department upon a person who has casually befriended Shankar Hari Maheshwari during a certain period of time and has on the basis of that friendship introduced him to his friends for opening bank accounts. It is seen that no efforts have been made either by Shri Praveen Mittal to lead evidence to show the basis of his belief and knowledge and unfortunately no efforts have been considered necessary by the Department to call upon Shri Praveen Mittal to justify the categorical statement. The casual acquaintance/friendship with Shankar Hari Maheshwari and Shri Praveen Mittal cannot be believed with any evidence to infer that the statement is based on facts and on conclusive and specific knowledge to categorically state that 90 per cent alternatively 95 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as there is nothing on record to show that the assessee was ever in a position to compel the broker with whom she had only a passing interaction limited to the activity of sale of shares that too through her father. It has to be kept in mind that the broker mayor may not continue business mayor may not change address on all these actions neither the assessee has any control nor can the assessee be presumed to stay in touch. The Department on the other hand has ample resources for compelling presence, cross-checking the continuance, change of address of the broker etc. from the exchange where he is registered and also cause him to be produced for cross-examination by the assessee so as to discard the evidences relied upon by her as per law. The information available with the Department no doubt may be considered to be sufficient for being a justified reason for reopening; however on verification of facts it is too flimsy for sustaining the addition. Reference to the information with the AO since assessee's payment was from a specific account the action of the AO to reopen may be sustainable; however, when the statements relied upon for upholding the addition by the AO are considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enuineness of the transaction of the broker Shri Shankar Hari Maheshwari has as addressed been completely ignored all along. At the cost of repetition he was never also made available for cross-examination to the assessee. 7. The assessee has also especially raised arguments and questioned so as to be informed of the purpose for which Shri Praveen Mittal was making those careless statements which have been used against her. No response to these repeated requests in writing though reproduced in the order has been brought on record although the assessee has repeatedly on record assailed the reliance placed by the Department on the said statement. 8. In the case before Delhi High Court these facts were never an issue nor was contested as such by the affected party as is an evident fact available on record herein. The existence of the name of the person as one of the transactions from a specific bank account per se does not lead to any evidence available with the Department that this was a bogus claim of shares thus although the ground for reopening has been decided against the assessee. On merits therefore the issue has to be decided in favour of the assessee. Thus, even if the un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts are identical in regard to documentation. Reliance has been placed upon the very same statements of the two witnesses of the Department which have been considered so as to agitate before the present Division Bench which in normal circumstances is bound to follow the order of the Co-ordinate Bench. Therein also the identical statement of Shri Maheshwari disowning the said bank account has been considered which had been relied upon by the Department therein also along with the statement recorded by the Department of the same Shri Praveen Mittal who acknowledged the fact that the specific bank account was caused to be opened on his request carried out by his friends namely the partners of M/s Haseeja Gulati since M/s Haseeja Gulati had a bank account in the very same bank of that particular branch of Punjab National Bank. In that case also Shri Praveen Mittal asked his friends to introduce Shri Shankar Hari Maheshwari to their bankers for opening account and the statement of Shri Praveen Mittal that the broker was having bogus share transactions of 90 to 95 per cent based on a mere acquaintanceship with the broker through a friend Sanjay Mittal whom he visited was considered. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... How he became aware of the categorical information to assert that the transactions done by Shri Maheshwari's account No. 8627 were sham does not inspire any confidence. The statements have been recorded at the back of the assessee and although have been confronted however have been recorded in the case of different assessees. But in the present case the concerned persons whose statements have been relied upon were not made available to the assessee for cross-examination. That these facts are identical to the present case is not disputed by the Revenue. The explanation of the assessee rebutting the statements confronted to the assessee in the facts of that case are to be taken into consideration and therefore the action of the Revenue cannot be in accordance if seen in the light of the Supreme Court decision in the case of Kishinchand Chellaram. The discrepancy explained in the amounts as per the contract notes and drafts received on account of the differential due to dispute withheld by the brokers cannot be discarded without any cogent reasons. The explanation has consistently been given by the assessee despite this nothing has been led by the Department to discard it. The statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered to be a reliable person so as to ignore the evidences available on record i.e. contract notes of sale and of the specific shares of specific rates on specific dates. Shri Praveen Mittal was the witness of the Department, the onus was therefore on the Department to produce him and make him available for cross-examination by the assessee. Similarly, the evidence that the companies were not in existence at the address available with the Department does not detract from the assessee's claim in view of the documents available on record. The discrepancy in the amounts to the expenditure of Rs. 53,356 was because of consistent statement by the assessee that the share broker made a short-payment and disputed the remaining amount. The Department has thus proceeded entirely on suspicion and surmises if seen in the light of the orders of the Tribunal. The claim of the assessee in regard to the first issue is to be allowed. 15. The other point of difference with regard to capital gain is whether on the facts, findings, circumstances of the case and in law the decision of the learned CIT(A) to deny benefit under s. 54F of the IT Act, 1961 has rightly been upheld or that the ground in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing of shares or holding thereof by the assessee and as such, there could neither be a case of holding of shares nor transfer thereof giving rise to capital gains eligible for exemption under s. 54F of the Act. Furthermore, the findings reached by the learned CIT(A) regarding residential house was also upheld for lack of requisite evidence having been produced and as such, the question of applicability of the judgments relied at the Bar in a case like this would not arise. Accordingly, both these grounds raised in appeal are rejected by him. 19. The learned JM held that in view of the fact that the same has been upheld on account of the treatment given to the earlier ground and the reasoning arrived at in the impugned order has been upheld without considering the arguments advanced on behalf of the assessee. On the second aspect of the matter she accepted the submission of the assessee that there was no bar for utilizing the said property as a residential property even though it was situated in a commercial block. This argument has been advanced even before the CIT(A). It has also not been doubted by the tax authorities that the said property consists of bedrooms, toilet and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly she allowed the claim of the assessee. 20. The claim for exemption under s. 54F has two aspects-(i) whether capital gain has arisen to the assessee from the transfer of long-term capital asset not being a residential house; and (ii) the assessee, has within the period of one year before or two years after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, a residential house. On fulfilment of both the conditions, the deduction under s. 54F can be allowed to the assessee. Insofar as the long-term capital gain is concerned, in view of the finding of aforesaid, there was a sale of shares and long-term capital gain has arisen to the assessee and the assessee complies with this condition. However, as far as the second condition is concerned, the assessee does not satisfy the same. When the house is located at a commercial complex it is difficult to accept that it was a residential house or it was used for residential purposes in absence of any evidence on record in support of user of the house as her residence when other attending circumstances are against her, like the assessee had given her address in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with majority opinion. DEEPAK R. SHAH, A.M.: 7th Aug., 2009 In this case the difference arose between the Members of the Division Bench hearing this appeal. Therefore, the matter was referred to the Third Member. Following questions were referred for the opinion of Third Member: "1. Whether on the facts. finding. circumstances of the case and in law the assessee can be said to have discharged her burden to prove the genuineness of transaction in shares of M/s Prasidh Exports and K.L.P. Finance Ltd. or that the burden had shifted on the Revenue that can be held to have not been discharged by them? 2. Whether on the facts, findings, circumstances of the case and in law the decision to uphold the assessability of alleged profit on alleged shares of Ms. Prasidh Exports and K.L.P. Finance Ltd. as income from other sources instead of the assessee's claim to capital gains is a correct decision or not? 3. Whether on the facts, findings, circumstances of the case and in law the assessee's ground Nos. 2 and 3 in appeal before the Tribunal have rightly been rejected or decision to allow the same is correct? 4. Whether on the facts, findings, circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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