9911796707
TMI Blog2009 (8) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... have erred in wrongly relying on the statement of, some parties recorded behind the back of the assessee without producing them for cross-examination in spite of the request made by the assessee and thus have erred in using that evidence against the assessee for making the assessment. 4. Because the shares were held for more than 12 months by the assessee. The transfer by the company in his record later on in the name of the assessee does not curtail the period of holding the shares and further exemption under s. 54F was rightly admissible to the assessee for investment in residential house used for residence even though constructed in commercial complex. 5. Because the authorities below have erred in not allowing exemption under s. 54F of the IT Act to the assessee. 6. Because charging of interest under ss. 234A, 234B and 234C is illegal and bad in law." 2. Briefly, the facts are that the AO initiated action under s. 148 of the Act on 28th March, 2002 after recording reasons on the basis of information received from Dy. Director of IT (Inv.), Gurgaon vide letter dt. 26th March, 2002. Investigations were made by the Dy. Director of IT (Inv.), Gurgaon with respect to entries of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT (Inv.). The only point which could be seen so far as this ground of appeal is concerned, is to ascertain whether the conditions prescribed under s. 147 were satisfied or not. The AO has rightly referred to the decision of Hon'ble Supreme Court in the case of Raymond Woollen Mills Ltd. vs. ITO & Ors. (1999) 152 CTR (SC) 418 : (1999) 236 ITR 34 (SC) wherein it has been held that in determining that whether commencement of reassessment proceedings was valid it has only to be seen whether there was prima facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. Thus, the question regarding giving of opportunity to the appellant would arise only during the assessment proceedings. For reopening the assessment it was not necessary for the AO to supply the appellant the information received by him from Dy. Director of IT (Inv.) Wing. The reliance placed by the appellant on the decisions of Hon'ble Supreme Court in the cases of Kalra Glue Factory vs. Sales Tax Tribunal & Ors. (1987) 65 CTR (SC) 233 : (1987) 167 ITR 498 (SC) and Kanhaiya Lal (HUF) vs. CIT & Anr. (2001) 166 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143(1)(a), but such completion was not followed by initiation of proceedings under s. 143(2). Counsel for the assessee then contended before the Calcutta High Court that completion of the assessment under s. 143(1)(a) coupled with expiration of the period of limitation for invoking the proviso to s. 143(2) precluded the AO from issuing a notice under s. 148. The Calcutta High Court rejected such submission of counsel for the assessee. In the present case also no assessment order has been passed under s. 143(3); the reopening had been made on the basis of information received from the Dy. Director of IT (Inv.) Wing. The same was, therefore, in accordance with the law. 2.3 AO has also placed reliance on the decision of Hon'ble Supreme Court in the case of Phool Chand Bajrang Lal & Anr. vs. ITO & Anr. (1993) 113 CTR (SC) 436 : (1993) 203 ITR 456 (SC). The facts in the present case are quite similar to the facts of this case. In the case of Phool Chand Bajrang Lal & Anr. vs. ITO & Anr., the facts were that the appellants were a firm and assessed to income-tax at Azamgarh (UP). The assessee claimed that. an amount of Rs. 50,000 was borrowed from M/s Jain Finance Distributors India (P) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above communication the AO on 26th Aug., 1971, issued a notice to the assessee under s. 148. In a writ filed before the Hon'ble High Court seeking the quashing of notice under s. 148, the Hon'ble Allahabad High Court under these facts and circumstances has held as under: 'As the information furnished by the ITO Calcutta, could form the basis for a reasonable belief on the part of the ITO, Azamgarh, that, as a result of a false representation made by that petitioner as to his having borrowed money from the Calcutta company, his income had escaped assessment, the ITO Azamgarh, could take action under s. 147(a) of the Act.' The decision of Hon'ble High Court was affirmed by the Hon'ble Supreme Court. The Hon'ble Supreme Court took into consideration certain tell-tale circumstances of the case which supported the view of the High Court. In this case, the decision in the case of ITO & Ors. vs. Lakhmani Mewal Das (l976) CTR (SC) 220 : (l976) 103 ITR 437 (SC) has been discussed and distinguished. The Hon'ble Supreme Court observed as under: '..........We cannot agree. In Mewal Das' case ITO & Ors. vs. Lakhmani Mewal Das (l976) CTR (SC) 220 : (l976) 103 ITR 437 (SC), the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his possession subsequently, he has reasons, which he must record to believe that, by reason of omission or failure on the part of the assessee to make a true and full disclosure of all material facts necessary for his assessment during the concluded assessment proceedings, any part of his income, profit or gain chargeable to income-tax has escaped assessment. He may start reassessment proceedings either because some fresh facts had come to light which were not previously disclosed or some information with regard to the facts previously disclosed comes into his possession which tends to expose the untruthfulness of those facts. In such situation, it is not a case of mere change of opinion or the drawing of a different inference from the same facts as were earlier available but acting on fresh information.' The Hon'ble Supreme Court further highlighted that it was not for the Court to judge the sufficiency of the reasons for forming the belief. The Hon'ble Supreme Court observed as under: 'Since the belief is that of the ITO, the sufficiency of reasons for forming the belief is not for the Court to judge but it is open to an assessee to establish that there in fact existed no bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s Maheshwari & Sons. Our investigations have revealed that transactions from this account are not genuine. Entries have been taken by the beneficiaries by paying cash an amount equivalent to the draft cheque amount and certain premium on that. The list of beneficiaries of your range is given in Annex.-7.' ------------------------------------------------------------ Sl. Date of Name of Address No. taking beneficiary ------------------------------------------------------------ 4. 16-2-1995 Sunita Oberoy 305, Navjyoti apartments bye-pass road, Agra ------------------------------------------------------------ Table Continues... ------------------------------------------------------------ Amount Cheque/draft Bank & &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 by the Investigation Wing and the decision given by their Lordships as cited by the assessee squarely applies to this case. Even from the statement of Shanker Hari Maheshwari recorded by Investigation Wing, Gurgaon, which according to them, was the basis for forming the opinion by Investigation Wing of Gurgaon, there was no name of the assessee given to link with the so-called bogus transaction. Consequently, the decision of ITO vs. Lakhmani Mewal Das (1976) CTR (SC) 220 : (1976) 103 ITR 437 (SC) squarely applies to the assessee's case. The learned CIT(A) was wholly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruly 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. Rajesh Jhaveri Stock Brokers (P) Ltd. (2007) 210 CTR (SC) 30 : (2007) 291 ITR 500 (SC) has also laid down that if the AO for whatever reason, has reason to believe that income has escaped assessment, it confers jurisdiction to reopen the assessment. 8. The Hon'ble Delhi High Court in a recent decision dt. 29th May, 2007 in the case of CIT vs. Vipin Batra (2007) 212 CTR (Del) 557 : (2007) 293 ITR 389 (Del) in a case of bogus entries of purchase and sale of shares taken from the same person M/s Maheshwari Sons, from whom the entries of sale of shares have also travelled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 : (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 Phool Chand Bajrang Lal & Anr. vs. ITO & Anr. (1977) 110 ITR 834 (All). The contentions repelled by the apex Court contained at p. 473 in the case of Phool Chand Bajrang Lal are as under: "In the present case, as already noticed, the ITO, Azamgarh, subsequent to the completion of the original assessment proceedings, on making an enquiry from the jurisdictional ITO at Calcutta, learnt that the Calcutta company from whom the assessee claimed to have borrowed the loan of Rs. 50,000 in cash had not really lent any money but only its name to cover up a bogus transaction and, after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) was specific and went to show that the Calcutta company was not a money-lender. This information was held to be vastly different, both in content and character, from the circular in Chhugamal Rajpal vs. S.P. Chaliha & Ors. Similarly, the apex Court distinguished the case of ITO vs. Lakhmani Mewal Das 1976 CTR (SC) 220 : (1976) 103 ITR 437 (SC) in which the proceedings had been initiated on the basis of a confessional statement by a creditor to the effect that he had only lent his name. The Supreme Court observed that there was nothing to show that the confession related to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Aggarwal vs. Asstt. CIT stated in earlier part of this order. 12. As found earlier, the information in the case of appellant is bona fide, specific and accompanied with relevant material showing accommodation entries taken by the assessee where in fact no sale or purchase of shares has actually taken place. Admittedly, the transactions relating to purchase and sales of shares were done through the bank account of the share broker, the holding of which had categorically been denied by said Shanker Hari Maheshwari, from which a clear inference flows that the transactions routed through th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hares 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 Maheswari Sons, the share broker. Out of these 3,000 shares of Prasidh Exports Ltd. are claimed to have been sold vide bill No. 2025, dt. 19th Oct., 1994 showing the date of transaction to be 26th Sept., 1994 @ Rs. 41.56 being the net sale price after reduction of brokerage and service charges and thus the aggregate sale value thereof has been shown at Rs. 1,24,680. The bill so raised by the assessee is unsigned. 13.4 Another 8,000 shares of M/s Prasidh Export& Ltd. are claimed to have been sold through a bill No. 1858, dt. 19th Oct., 1994 showing the date of transaction to be 26th Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 at his last known address at Aligarh, but all the notices were returned unserved by the post office for want of proper addresses. Likewise notices sent to the companies at their known addresses have been returned back with postal remark "Left". The assessee neither filed confirmations nor produced any other address at which summons could be issued. The AO, therefore, came to the conclusion that the assessee has failed to establish his claim and held that the payments received from M/s Maheshwari Sons are nothing but accommodation entries taken on five different dates against bogus trading sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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. With reference to introduction of this account of Maheshwari Sons (8627) is introduced by my partner Shri Sanjay Hasija. I also introduced 3-4 accounts in the bank on this request of my fellow chartered accountant Shri Praveen Mittal. He sits at 1748/55, Second Floor, Karolbagh, Dhane-6744226. I met Shanker Hari Maheshwari of Aligarh with Parveen Mittal, Mr. Parveen Mittal lives in Pitampura, Rohini, New Delhi. Mr. Parveen told me that these persons are his clients/friends and requested to introduce these accounts as I was having account in this bank. I do not know anything about these persons. I si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 95 per cent of bogus transactions relating to sale/purchase of shares have come through this account and most of the beneficiaries have availed relief under s. 54F of the IT Act. Some of the beneficiaries like firm/company took capital losses to offset their business gains. He explained about the modus operandi of these transactions as most of the huge cash was used to be deposited in the accounts of M/s Shivangi & Co. and M/s Shakti & Co. From those two accounts, transfer entries were effected in the accounts of M/s Maheshwari Sons. Then, from this account, cheques, drafts were issued to the concerned b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 gains. These capital gains were bogus in the sense that there were no genuine transactions in the sale/purchase of shares and these drafts/cheques were issued with certain documents in the name of shares in lieu of equivalent cash. The cash was deposited in these two accounts of employees and then transferred in account of S.H. Maheshwari from where drafts/cheques were issued to different clients/assessees as discussed above. The boys who used to go to banks for depositing cash, getting drafts etc. prepared were Rajiv and Mukesh. Rajiv was working for Maheshwari and account of Shivangi & Co. was in his name. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 company whose shares were purchased by you for Rs. 69,690 and subsequently sold for Rs. 6,20,510. Please furnish documentary evidence to prove the identity of the sellers and purchasers of the abovesaid shares apart from documentary evidences of transactions in the purchase/sale of the shares. Please furnish confirmation from the share broker who is stated to have arranged for purchase/sale of the shares for you. It should be also appreciated that as per the modus operandi given by Shri Praveen Mittal the facts of the case of the appellant had striking similarities as compared with the modus operandi described by Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st 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 mentioned in the order-sheet entry dt. 5th March, 2003. The learned representative of the appellant was required to produce certificates/evidence if any from the companies i.e., M/s Prasidh Exports and K.L.P. Finance Ltd. in support of the holding of the shares by assessee during the period mentioned in photocopies of the share certificates. In the letter dt. 21st Feb., 2003 filed before the AO, it was informed that with regard to the confirmation of transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /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 National Bank, Gurudwara Road, Karol Bagh, New Delhi. A reply dt. 15th Feb., 2003 had been received from the Punjab National Bank. The bank had sent photocopies of draft/MT application form. It is seen that the application dt. 16th Dec., 1994 for issuing the draft has been signed by Shri Mukesh. In this application form draft has been got prepared in the favour of Smt. Sunita Oberoy and Shri Sunil Oberoy; name of the recipients of the draft (as given on the back of the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 show that these shares were not regularly traded which is the impression the appellant and the learned representative of the appellant are trying to create. The AO had also written letters to M/s K.L.P. Finance Ltd. and M/s Prasidh Exports asking them to confirm the transactions in its shares by the appellant. These letters were also returned unserved. The AO had written a letter to the Punjab National Bank, Main Market, Patel Nagar, New Delhi asking for certain details about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 tallies with the transactions allegedly entered into by the appellant. It can also not be a mere coincidence that these drafts have been issued from those bank account which had been admittedly used for giving entries for capital gains, to many other persons. It is also a very rare coincidence that the names of the brokers, names of the persons who had applied for and received the bank drafts are the same as given by Shri Praveen Mittal. This coupled with the fact that the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubtful 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 back. The assessee cannot be expected to keep in touch with these companies or the brokers when in fact the assessee was not dealing in shares. In this connection, it may be pointed out that as per the return of income filed for the asst. yr. 1995-96 it is seen that the same has been filed on 29th March, 1997 while the due date of filing of return was 30th June, 1995. Thus, the appellant herself filed return of income very late. The appellant therefore, cannot take the plea that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Delhi Stock Exchange and UP Stock Exchange. All these transactions allegedly entered by the appellant were of market transactions. If these shares in reality offered such profitable investment opportunity then there should have been regular transactions in these shares on the stock exchange. 3.15 I may also like to point out that under similar facts and circumstances some other assessees have surrendered such income from capital gains and offered the same for taxation. While ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 instant case proper opportunity had not been granted to the assessee to prove the gift.' 3.19 In view of the detailed discussion made above and tell-tale surrounding circumstances. the fact is clearly established that the appellant has not been able to prove the genuineness of the transactions resulting in capital gains. Under the facts and circumstances of the case, the AO was fully justified in treating the receipt of Rs. 5,67,134 as income of the appellant from undisclosed sources. The addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 as to entitle the Department to place the reliance for reopening the assessment under s. 148 or thereafter making assessment for reassessment. Shankar Hari Maheshwari in his statement has admitted that he was doing the purchase and sale business of shares upto 1993 and was member of UP Stock Exchange upto 1995. In query No. 11 referred to by CIT(A) he has disowned the bank account No. 8627 of Maheshwari Sons at Delhi that he has not made any dealing from this bank account. Somebody might have done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arwal (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 the Hon'ble Tribunal, Agra Bench in the case of Ashok Kumar Agarwal vs. Asstt. CIT in ITA No. 129/Agra/2004, dt. 2nd April, 2006 in the similar circumstances has also taken a view that there is no evidence on record to prove that the assessee has provided unaccounted money for getting the bank account." 19. He also placed reliance on decision of Tribunal in Single Member case of Rashi Aggarwal vs. ITO and Smt. Anu Jain vs. ITO and decision rendered by Allahabad High Court in the case of Tin Manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween 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 Sons which were so done after transferring the amount from the said two accounts in the name of Shivangi & Co. and Sakti & Co. Incidentally, the returns of income filed by the appellant for these years were also belated. The AO under peculiar facts of this case required the assessee to bring confirmation for share transactions both from the brokers as well as from the companies whose shares are claimed to have been transacted. Despite several opportunities, the appellant did not bring on record any confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neness 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 for this sum. It is only when the Department was not able to trace out person from whom the assessee borrowed this amount, it was held that after the lapse of ten years the assessee should not be placed upon the rack and called upon to explain not merely the origin and source of his capital construction but the origin of origin and source of source as well. (ii) In the judgment rendered by apex Court in Kishinchand Chellaram vs. CIT (1980) 19 CTR (SC) 360 : (1980) 125 ITR 713 (SC), the AO on receipt of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Oct., 2004 is found to have followed an identical case of Sunita Gupta where a finding had been reached that the assessee had not paid any premium either to Maheshwari Sons or any other person and the transaction in shares were genuine. In that case, the AO even did not confront the assessee with the information in his possession nor provided any opportunity to rebut the same. (viii) The judgment rendered by Hon'ble Allahabad High Court in Tin Manufacturing Company of India vs. CIT & Anr. was a case where by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 confirmation as sought by authorities below has been obtained or produced before us. Thus, the assessee cannot be said to have discharged the primary onus that lay upon her. In such circumstances, the Department cannot be expected to chase a Hawala operator in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable 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 accept the claim of the assessee that the property was used for residential purpose and as such he has denied the claim of exemption under s. 54F of the Act besides finding that no capital gain arises as the transaction relates to bogus entry. His decision in para 5.1 is reproduced as under: "I have considered the facts of the case and the arguments of the learned representative of the appellant. It is a fact that the house was located at a commercial complex at Sanjay Place, Agra. It has been claimed by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 have heard the parties and carefully perused the material on record with reference to precedents cited at Bar. We do not find any reason to interfere with the well reasoned decision reached by the learned CIT(A). There was sufficient material to show that the alleged purchases as well as sale of shares were a transaction of money laundering and documents being produced were only to give colour of genuineness. The assessee has failed to discharge its primary onus by bringing any confirmation on record with respect to act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 the Tribunal in quashing the s. 148 notice and held the same to be valid proceedings under s. 147. On merits their Lordships remanded the issue back to the file of the Tribunal as the Tribunal had not gone into the merits of the controversy. Accordingly, in the peculiar facts and circumstances of the case, the action of the AO in reopening the proceedings under s. 147 is upheld and ground No. 1 of the assessee is rejected. 4. Before proceeding to discuss the arguments and counter-arguments qua t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 Shankar Hari Maheshwari as his own as such this contradiction was emphasized so as to assail the statement which was being relied upon by the AO. 11. It was also assailed that in what sequence the statement was recorded is not clear from the statement and for what purpose it was recorded was also not coming out. Since whether it was of the same person itself was doubted the statement was considered to be of no relevance. 12. As per p. 4 of the impugned order it was also assailed on the ground that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 issues whether the demand draft was prepared by the brokers from his bank account himself or through any other person on the instigation of the broker. It was stated that these are areas with which the assessee has no concern as long as money due to her is received in the proper manner from the brokers for sale of her shares. As such the sale proceeds were contended to be fully explained. 16. In regard to the case law applied by the AO it was submitted was not relevant. One of the cases mentioned in the citatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 broker retained the said amount. The submissions are found recorded at pp. 16 and 17 of the impugned order. 20. It was reiterated on behalf of the assessee that the demand drafts for sale proceeds were received through bank account of Maheshwari & Sons share broker as noted by the AO in para 5 of his order. The action of the AO in treating the same as income from undisclosed sources instead of allowing the claim of long-term capital gain as discussed in paras 3, 4, and 9 of the assessment order was objected to on va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 broker to the assessee according to the recovery by the broker on the sale of shares as such the transaction was genuine. 28. In respect of the objections of the AO in para 7 of the assessment order it was submitted that they were more or less repeated by the AO in para 3. 29. In regard to the objections of the AO posed in para 8 on the ground that the assessee has not furnished the confirmation from M/s Prasidh Exports, K.L.P. Finance Limited and M/s Maheshwari and Sons, detailed arguments were advanced which are found r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 there is no material on record to hold that the assessee has not purchased or sold the shares or the transaction of the share is bogus. The conclusion arrived at by the AO was alleged to be based on presumption and on no evidence. 31. In the above background the CIT(A) required the AO to make enquiries from various stock exchanges. 32. In response thereto the reply so made available by the AO is reproduced in pp. 20 to 22 of the impugned order. 33. A perusal of p. 20 would show that the AO has repeated the fact that against the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 introduction form also Shri Praveen Mittal's office address was given. Apart from this he knew nothing else. Shri Sanjay Haseeja also corroborated the same thing. On the basis of this as per the report of the Dy. Director of IT, the modus operandi in regard to the bogus capital gains was considered wherein as per the statement of Shri Praveen Mittal who was taken to be the person capable of commenting upon the transaction stated that the current bank accounts in the names of M/s Shivangi & Company, Shakti & Company and M/s Maheshwari & Sons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the account, the CIT(A) referred that the assessee has been required to produce documentary evidence in support of this claim. He took note of the fact that the modus operandi described by Shri Praveen Mittal had striking similarities to the facts of the assessee's case. He observed that in response to the opportunity provided by the AO, the assessee as per her reply dt. 4th Feb., 2003 stated that full papers, contract note, account statement of the broker and the photocopy of the share certificates allotted in the name of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 held to be irrelevant; similarly, the argument of the assessee that the fact who prepared the demand draft on behalf of the broker was not relevant was also not accepted by the CIT(A) in view of the fact that it coincided with the modus operandi narrated by Shri Praveen Mittal to the Department. 41. The CIT(A) also faulted the response of the assessee wherein in her statement recorded by the AO she stated that neither the share broker nor the persons with whom the said transactions were entered into were personally known to her and the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hari Maheshwari of Aligarh is concerned. he has completely denied the opening of the said bank account and the assessee has raised issues before the CIT(A) which were canvassed before us also that the statement of Shri Shankar Hari Maheshwari who denies the opening of the specific account from which the assessee received the demand draft on the sale of the shares cannot be the same Shankar Hari Maheshwari who had an office at Antariksh Bhawan and opened the specific bank accounts in the capacity of a broker. As evidently on record a bank account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 have been considered necessary by the Department to call upon Shri Praveen Mittal to justify the categorical statement. It is further seen that the said person has not been made available to the assessee for cross-examination. The casual acquaintance/friendship with Shankar Hari Maheshwari and Shri Praveen Mittal cannot be believed without 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 per cent transactions from the specific bank accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 aforementioned facts on a perusal of the entire material avail on record it is seen that certain assumptions on facts and evidences have been made by the Department holding that the statement of Shri Praveen Mittal is so sacrosanct that even documents on record placed by the assessee have to be disregarded. As considered earlier whether he was ever in a position to be considered to be qualified to make such categoric statement has never been examined by the Department in fact has been ignored by the tax authorities. The assessee has specially q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 broker and get the particulars of the parties to whom the shares were sold it has been argued that firstly by virtue of the magnitude of the share trading activity done by the assessee, she was hardly in a position to compel the broker in any manner to give the confirmations. Moreover, after 10 years the whereabouts of the company, brokers, parties etc. would hardly be available with the assessee for which reliance has been placed upon decision in S. Hastimal vs. CIT (1963) 49 ITR 273 (Mad). Since the Department has relied upon the two persons thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsider 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 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 account of that particular branch of Punjab National Bank. Therein also as per the facts Sh. Praveen Mittal was held to be the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 associates M/s Haseeja & Gulati introduced Shri Maheshwari to bank Punjab National Bank on account No. 8627 was not a person who could comment that 90 per cent of the transactions from the said bank account Punjab National Bank 8627 were bogus transactions. The Co-ordinate Benches have noted that Shri Mittal claimed to know Shri Maheshwari only as he visited another friend conducting business from the same premises. As such he was not capable to comment upon the nature of work done by Shri Maheshwari. Especially since the intricacies of the nature of wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Road, New Delhi through which the cheques/drafts were got prepared, it was admitted that it was also not operated by him. However, the claim of the assessee has been that he purchased shares of M/s Parsidh Exports Ltd. for an aggregate consideration of Rs. 21,210 which was shown in the balance sheet of the earlier period ending on 31st March, 1994 corresponding to the earlier asst. yr. 1994-95. The sale of such shares took place during the year under consideration on 26th Sept., 1994, which resulted in the receipt of sale consideration during the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout 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 capital loss were supplied the sale certificate goes to confirm that the assessee had received share certificates............ genuineness of the transaction. more so because the existence of the company in question and the market rates of shares were duly notified in the stock exchange and Mr. Hasija was member of the stock exchange. These facts prove the genuineness of the company, genuineness of the share certificates as well as genuineness of the transaction and consequently the genuineness of the capital gains. Without prejudice to the above and without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequently 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 liable to be deleted. Even otherwise we find that no effort has been made by the AO to find out any material or evidence to come to the conclusion that the transactions shown by the assessee was a bogus transaction. In this regard, we may also mention that the proposition relied upon by the CIT(A) to the effect that the onus was on the assessee to produce the said party M/s. Maheshwari & Sons proprietor. Mr. Shankar Hari Maheshwari cannot be accepted. Admittedly, the statement of Shri Shankar Hari Maheshwari recorded by Dy. Director of IT (Inv.) was a piece of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittal. (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 the assessee had discharged his onus by filing all necessary evidence in support of his claim. He has drawn the attention of the various documents before the AO as well as the CIT(A) which include purchase contract note, contract note for sales, distinctive numbers of shares purchased and sold, copy of share certificates and the quotation of the shares on the date of purchase and sale. It has been further argued that on all these documents the name and address of each person involved in the transaction have been stated. The purchase of the shares was made on 2nd March, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 witness of the appellant but was that of the Revenue. His non-appearance in the assessment proceedings cannot be interpreted against the appellant. On the contrary, it was the onus of the AO to enforce the attendance of Mr. Praveen Mittal and the absence of appearance of Mr. Praveen Mittal in the assessment proceedings and without giving opportunity of cross-examination of Mr. Praveen Mittal the statement made by him before a person who is not the AO cannot be relied upon. The learned Authorised Representative vehemently argued that it is an allegation of the Revenue on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne 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 support of the transaction. Accordingly, I do not find any scope to interfere in the findings of the learned CIT(A) deleting the addition of Rs. 2,69,500." 55. Thus, it has been argued that both in the cases of Rajiv Aggarwal, S.K. Bansal and Sunita Gupta the Co-ordinate Benches have taken note of these facts and evidences and came to a finding in favour of the assessee. It is also seen that in the case of S.K. Bansal it was not only the very same parties i.e. Shri Shankar Hari Maheshwari and Shri Praveen Mittal but even the shares were also of the same companies as su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 on the ground that he was not made available for cross-examination and the director's statement of bogus transactions was disregarded on the basis of identical evidence available on record which could not be discarded solely on the basis of a statement of a director despite the fact that the director as opposed to the casual acquaintance like Praveen Mittal was definitely intimately connected with the functioning of the company whose functioning had been commented upon by him. Thus, the proposition laid down therein is fully applicable in the facts of the present case as h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 should definitely be known to the assessee. As such these facts do not detract from the claim of the assessee who has interacted with the share brokers, purchased the shares and thereafter over a period of time sold the same as per the advice of her father. She was nowhere responsible for the fact that the summons issued to the said companies returned unserved. Similarly, no reasons are there to show that Shri Praveen Mittal was ever in a position to declare the transactions of an acquaintance broker as bogus transactions neither any evidence has been led nor reasons advanced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod 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 first. 61. A perusal of the assessment order shows that in regard to the claim of exemption under s. 54F although the purchase of the said property and the transfer of the said property in assessee's name in Sanjay Place, Agra, 22/1, Emporium Block was not doubted by the AO; however, in view of the fact that it was not (sic) a property situated in the commercial block as such the AO required the assessee to justify her claim in the context of residential properly in the commercial block. In response to this the assessee as per the assessment order furnished her written submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing 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 used for non-commercial purposes by the persons and many residential purposes are being used for commercial purposes. Thus, the allotment by a particular authority for any particular purpose has no meaning under s. 54F. What is got to be seen is that the assessee has made investment of long-term capital gains of long-term assets other than residential houses in the purchase of residential house for claiming exemption. The residential house, as defined in many judicial pronouncements, is meant for house for residential purpose for inhabitation by the person, which should give all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 below submitted that while deciding the issue the CIT(A) called for the report of the ITI from the AO after calling forth the same he has not placed any reliance on the same. It was his submission that no reason for rejecting the same has been given since the evidence on record even on inspection was that on the date of the physical verification of the property a portion of it was used for commercial purposes only by the husband of the assessee. It was the submission that this evidence nowhere detracts from the claim of the assessee that at the relevant point of time for about three yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 address of the father-in-law's house does not by itself prove the fact that the assessee did not temporarily reside at the address claimed. The said premises were fully furnished with bedrooms, kitchen and toilets. This fact has not been disputed by the tax authorities. As such in the various other documents like ration card, voters identification card etc. one normally gives the permanent address. Documentary evidence for the temporary residence of a few years in the nature of ration card and voters identification etc. may not be made. Similarly, the mere fact that on the date of physical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the name of one Shri Shanker Hari Maheshwari, who has been shown as proprietor of M/s Maheshwari Sons; that these transactions from this account were not genuine and that entries have been taken by the beneficiaries by paying in cash of an amount equivalent received through drafts/cheques and after paying certain premium; that assessee's name also figured in the list of such beneficiaries forwarded by the Investigation Wing and the case was reopened under s. 147 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts. 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 confirmation as sought by authorities below has been obtained or produced before us. Thus, the assessee cannot be said to have discharged the primary onus that lay upon her. In such circumstances, the Department cannot be expected to chase a Hawala operator indefinitely once he is found to have disowned the very bank account from where the money travelled to the benefit of the assessee. If the assessee claimed otherwise, the heavy burden lay on her to have proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of IT (Inv.), Gurgaon, the assessee was one of the beneficiaries from the stated bank account. However, according to her once the information is evaluated it is seen that Shri Shankar Hari Maheshwari of Aligarh completely denied the opening of the said bank account from which the assessee received the demand draft on the sale of the shares cannot be the same Shankar Hari Maheshwari who had an office at Antarisksh Bhawan and opened the specific bank accounts in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 per cent transactions from the specific bank accounts are bogus. No evidence on the crucial aspect is available on record. The whimsical estimate of 90 to 95 per cent cannot be accepted in the absence of any evidence in support thereof. To do so is placing too high a reliance on a person who had no occasion to become intimately acquainted to the extent implied so to give the statement that most of the transactions are bogus. Shri Praveen Mittal was neither a partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 considered it is seen that there is a total lack of credibility and is against the settled legal principles and norms. Moreover, Shri Shankar Hari Maheshwari if he was the same person who acted as a broker then apparently he suffered from a selective memory and his statement available on record has to be discarded as a statement of an unreliable witness even if his statement is considered it is seen that in the same there is no mention otherwise also of the assessee. Shri Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unsupported assertions of the Department are to be believed that some of the transactions of Shankar 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 bogus transactions. Even that effort is missing. In the facts of the present case qua the assessee no such assertions by the persons who were wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The Bench took note of the fact that Shri Maheshwari was a broker registered with Kanpur Stock Exchange at the relevant point of time i.e. when the broker Shri Maheshwari was introduced to the bankers by the friends of Shri Praveen Mittal. It took note of the fact that Shri Praveen Mittal stated that he requested his friends Haseeja and Gulati for the opening of the bank account at that time Shri Maheshwari dealt in new public issues and had an office in Antariksh Bhawa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 statements of the witness heavily relied upon the Department have already been seen as having been based on no evidence and have already been discarded by Co-ordinate Benches and even they do not disprove the explanation of the assessee pertaining to the dispute with the broker. 13. In yet another case of ITO vs. Rajiv Aggarwal (2004) 89 TTJ (Del) 1095, Delhi Tribunal held in the context of statements given by Shri Shankar Hari Maheshwari and Shri Praveen Mittal considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 appeal by assessee on his claim is correctly allowed. 16. As regards this the CIT(A) did not accept the claim of the assessee that the property was used for residential purpose and as such he has denied the claim of exemption under s. 54F of the Act besides finding that no capital gain arises as the transaction relates to bogus entry. 17. The assessee contends that the holding of shares is for the period of more than 12 months and the transfer having been registered in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 kitchen etc. and local inquiries as per the remand report of the Inspector of income-tax acknowledges 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the return of income as 305, Nav Jyoti Apartments Bye-Pass Road, Agra. If the assessee was really staying at the property, she should have given that address as her home address in the return of income. No documentary evidence to substantiate the claim was furnished like ration card, bank pass book, driving license etc. in support of her contention. On the contrary, she has been receiving rental income for the same property from M/s Satyam Agencies and at the time of inspection th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuineness 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 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?" Hon'ble Senior Vice President, acting as Third Member, has agreed with the view of the learned JM on the first three points of difference, deciding them in favour of the assessee, but the last and 4th point of difference has been decided in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
