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TMI Blog2012 (5) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, was not pressed. Therefore, the same is dismissed as not pressed. 2. The appeals in ITA Nos. 446 and 202/Jd/2009 relating to asst. yr. 2002-03 are by Department and assessee. The appeal filed by assessee is against the order of learned CIT(A), dt. 10th Feb., 2009 by which the issue in respect to addition of Rs. 18,47,560 on account of long-term capital gain on sale of shares was rejected, whereas the Department is in appeal against the order of learned CIT(A), dt. 21st May, 2009 passed by learned CIT(A) under s. 154 for the same assessment year i.e. 2002-03. 3. The learned counsel of the assessee stated that if the appeal of the Department is taken up then appeal of the assessee may be treated as infructuous. However, the learned CIT-Departmental Representative has stated that since the Department is against the order passed under s. 154 and assessee has already filed appeal against the original order of learned CIT(A), dt. 10th Feb., 2009, therefore, appeal of the assessee may be taken first and if the appeal of the assessee is taken, then appeal of the Department may be treated as infructuous as the issues involved are the same. We will take the appeal of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue found that a mistake has crept in his order, accordingly he deleted the addition by passing order under s. 154. 6. Now, as stated above, both are in appeal here before the Tribunal. 7. The assessee is in appeal against the original order of learned CIT(A) whereby addition has been confirmed and the Department is in appeal against the order passed under s. 154 by which addition has been deleted by learned CIT(A). 8. The contentions raised before the lower authorities were reiterated here before the Tribunal. Reliance has been placed by learned Authorised Representative in Asstt. CIT vs. Chandresh Kumar Maheshwari (2008) 16 DTR (Jd)(Trib) 114, ITO vs. Smt. Kusumlata (2006) 105 TTJ (Jd) 265, 49 DTR 149 (Raj) (sic) and a decision of Jaipur Bench, copies of all these decisions are placed on record. It was further submitted by learned Authorised Representative that AO has made an addition on the basis of statement of the broker which was given in a routine manner and no where the name of the assessee is appearing in the statement as this fact is clearly borne out from the order of AO that the name of the assessee was not mentioned by the broker. The broker may be issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that 61,700 shares have been demated in the name of the assessee is placed at p. 320 of the paper book. Thereafter the assessee sold shares numbering 20,000 on 28th Aug., 2001 through M/s MKM Finse (P) Ltd., copy of which is placed at p. 231 of the paper book. Thereafter assessee sold further 41,700 shares, copy of the same is placed at p. 232. These shares were sold vide bill dt. 24th Aug., 2001. Payments have been received through account payee cheque. The certificate from M/s Stock Holding Corporation Ltd. through whom the shares are delivered is placed at pp. 235 and 236 of the paper book. After going through details, it is clearly seen that assessee purchased shares in earlier year. They were shown in the balance sheet which was filed along with the return of income. The payments were made through books of account which has not been doubted. The shares belong to a listed company which is also not in doubt. The company itself has issued certificate that all these shares have been demated, copy of the same is placed on record. Once the purchase of shares is not doubted, then in our considered view, the sale of same shares should not have been doubted. If assessee has invested hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proving the transaction is always on the person asserting the transaction to be bogus and this burden has to be strictly discharged by adducing legal evidence of character, which would either directly prove the fact of bogus or establish the circumstances unerringly and reasonably raising an inference to that effect. The assessee made payment for the purchase for the year on source through banking channel. The shares were transferred in the name of the assessee and were held by her for more than one year. There is no relationship between the party from whom the assessee has purchased the shares and the party to whom these shares were sold. The shares were delivered after its sale and the assessee did not remain in possession of those shares. 14. From the above facts, it is established that the assessee acquired the shares to earn profit. There is no evidence except speculation that this profit is not from the sale of shares. The AO has failed to establish his case and to discharge the requisite burden that lay upon him. Accordingly the issue was decided in favour of the assessee. 15. Similar facts are involved in the present case. In the case in hand, the shares were also p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) deleted those additions and on second appeal by Department, the order of learned CIT(A) was confirmed. The issue was examined at great length and then only the order of learned CIT(A) was confirmed. Here also, the facts are similar. A general statement given by Shri Batra was relied upon by AO and it did not borne out that where the statement was recorded and in what connection the statement was recorded and how it was related to the assessee's case. Therefore, in our view, this statement given by Shri Batra should not have been considered by AO against the so much details filed before him which were not examined by making enquiry from the respective party. In view of these facts and circumstances, we allow the appeal of the assessee by deleting the impugned addition made and direct the AO to accept the capital gain shown on account of sale of shares. 17. The appeal of the assessee is allowed and the appeal of the Department is dismissed as same has become infructuous in nature. 18. Now we will take up remaining appeal by assessee for asst. yr. 2006-07 in ITA No. 201/Jd/2009. 19. Ground No. 3 which is against initiation of proceedings under s. 132 and thereafter pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition of Rs. 81,340 on account of excess stock. 26. The assessee is proprietor of a trading concern. Excess stock of Rs. 81,340 was worked out by AO by discussing his view at pp. 4 and 5 of his order. The AO observed that excess stock amounting to Rs. 81,340 was allegedly found during search. The explanation of the assessee was not accepted that stock of about Rs. 20 lacs was found. It can be a mistake in counting the stock. It was also stated that in the stock, gross profit was also included. However, AO was not satisfied with the explanation of the assessee. The learned CIT(A) also confirmed the action of the AO. 27. After considering the orders of the AO and learned CIT(A) and submissions on behalf of the parties, we find that assessee deserves to succeed in this ground. If GP ratio is taken into consideration i.e. on the basis of gross profit declared by assessee it comes to Rs. 43,140. Therefore, straightaway this amount has to be reduced from the value of undisclosed stock. The remaining amount is Rs. 38,200. We find weight in the contention of the learned counsel of the assessee that there was a stock of Rs. 20 lacs and it is quite possible that this difference ma ..... 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