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TMI Blog2013 (11) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... of CIT (A) holding that the sale of share transaction as genuine ignoring the facts that statement of sub broker Sh.Bharat Yadav wherein he had admitted that no actual share transaction was taken place and the bills/contract notes along with draft issued to the beneficiaries in lieu of their own money. 2.Whether the Hon'ble ITAT was legally correct in holding that the sale transactions genuine ignoring the fact that the assessee could not discharge his onus to prove the genuineness of the share transaction as per requirement of section 68 of the AIT Act, 1961." Briefly stated the facts giving rise to the present appeal are as follows:- The appeal relates to the Assessment Year 2004-05. The assessee-opposite party is an 'individual'. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als) while deleting the addition has held as follows. "2.5. I have considered the facts of the case, assessment record, submission of AR and position of law, in my opinion, appellant deserves to succeed. At the time of making assessment, the AO on the basis that the appellant could not furnish any evidence to prove that the shares were actually transferred from his name and there was no actual sale of shares and the money allegedly received as sale consideration of shares was in fact appellant's own money which was routed through the help of some unscrupulous person and hence made an addition of Rs.19,51,038/- as income from undisclosed and unexplained sources u/s 68 of I.T. Act. On the other hand during the course of assessment as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available is not correct. viii) The sale consideration of these shares was received through account payee Demand Drafts duly ascertained by the AO independently to have been issued from the bank account of the broker. ix) During the course of assessment proceedings the following evidences were brought on record:- a) Copy of share broker bill. b) Copy of the Contract note. c) Copy of Demat account statement with Stock Holding Corporation of India Ltd. Which clearly shows that the shares were transferred from the name of appellant after its sale. d) Copy of ledger account of the appellant in the books of share broker. f) Copy of Bank Statement of appellant with Bank of India, Agra. x) Further during the course of assessment proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as rightly pointed out by the AR's, there is no evidence on record as referred in assessment order, to prove that the proceeds received against sale of shares represent appellant's undisclosed income. Hon'ble Apex Court in the case of Kishan Chand Chella Ram vs CIT rep[orted in 125 ITR 713 has held "that the burden is on the Department to prove that the money belongs to the assessee by bringing proper evidence on record and the assessee could not be excepted to call the concerned person in evidence to help the Department to discharge the burden that lay upon it". Similar view has been expressed by the Hon'ble Allahabad High Court in the case of CIT vs. Daya Chand Jain Vaidya 98 ITR 280. xii) The AR's of the appellant has also strongly emph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting unreasonably a good explanation, convert good proof into no proof'. The AO has based his conclusion on unfounded presumption and surmises. This also can not be approved. Reliance is placed to the Hon'ble Supreme Court decision in the case of Umacharan Shaw & Bros. vs. CIT 37 ITR 271. (2.7) Thus in view of above facts and circumstances of the case it is well established by the appellant regarding genuineness of share transaction and he has sufficiently discharged the onus cast upon him. AO's action is not well founded in position of law in adding entire amount of sale of shares as income from undisclosed and unexplained sources u/s 68 of I.T. Act. Therefore, I am deleting the entire amount of Rs.19,51,038/-. However, the AO is directe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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