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TMI Blog2014 (2) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... be no unexplained investment at all for consideration in the assessment year 2009-10 – thus, in the interest of justice, the matter has to be remitted back to the Assessing Officer since all the arguments raised by the assessee in his written submissions were not considered by the Revenue – Decided in favour of Assessee. Profit on sale of shares – Held that:- The CIT(A) held that The A.O is required to look into the aspect, and if found so, the AO may treat the above gains as short term capital gains only- the AO is also required to recomputed the peak investments by considering the above sales as the sales of the financial year 2008-09 - CIT(A) has only directed the AO to verify the relevant dates and recompute the income as per merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 1. Ld. CIT (A) had erred in deleting the addition on unexplained investment in shares to the tune of Rs.9,78,600/-. 2. Ld. Ld. CIT (A) had erred in directing the Ld. Assessing Officer to verify the financial year for the sale of shares based on fresh evidence. 4. The assessee is an individual, filed his return of income for the A.Y. 2009-10 subsequent to issuance of notice U/s. 148 based on the information received from Dy. Director of Investigation, Chennai. Subsequently the assessment was completed on 30.12.2011 wherein Ld. Assessing Officer made addition on account of:- a) Unexplained investment on purchase of shares Rs.46,53,460/- b) Profit on sale of shares (short term capital gain) Rs.2,05,468/- 5. Ground No.1: Unexpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment evidencing the same was also furnished in the paper book at page No.7-8. As per the documentary evidence furnishes, the shares were purchased on 9/4/2007. This is also supported by the letter issued by the Asst. Director of Incometax( Investigation) dated 16.4.2010 wherein it was confirmed that as per the broker s contract the shares were purchases only on 9.4.2007. The appellant submits that the lower authorities were wrong in presuming that the shares were purchased in the F.Y.2008-09 whereas the shares were purchased in the F.Y.2007-08 for Rs.16,25,000/- and duly brought into the books. The lower authorities were therefore wrong in observing that the appellant had invested Rs.46,53,460/- and that too in the assessment year 2008-09 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the matter. The appellant submits in the appeal preferred against the unexplained investment in shares of Rs.46,53,460/- the Commissioner of Income Tax (Appeals) held that only peak investments should be assessed and not the entire cost of the shares. He has allowed set off of the sale consideration received on sale of such shares while working out the peak investments and arrived at the peak at Rs.36,74,800/-. However, in a note in the said order he has observed as under:- However, if dates of sale are mistakenly mentioned as 05-09-2009 and 25.11.2009 instead of the actual sale dates of 05.09.2008 and 25.11.2008 it will amount to short term capital gains. The AO is required to look into this aspect and if found so, the AO ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plained amount actually invested should be determined and while doing so, there is nothing wrong in telescoping the amounts available by way of sale of shares for future investment in such shares. The theory of assessing peak credit was well accepted by the Department and therefore this ground of the department may be dismissed. This ground may not even sustain once it is held that the investment in shares were made only in the assessment year 2008-09 and not in the A.Y.2009-10 as there would be no unexplained investment at all for consideration in the assessment year 2009-10. 7. Considering the written submissions, and the facts of the case we are of the opinion that in the interest of justice, the matter has to be remitted back to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee, the Ld. Assessing Officer is directed to look into the issue considering the provisions of the Sec.10 (38) of the Act. Accordingly, this ground raised by the assessee is partly allowed. 10. Revenue s Appeal:- Since the first ground of the Revenue s appeal is inter related to the ground raised by the assessee and the same is remitted back to the file of the Ld. Assessing Officer for de novo consideration in the assessee s appeal supra, and further the second ground of the Revenue relates to, granting opportunity to the Ld. Assessing Officer for the fresh claims made before the Ld. CIT(A), we find it appropriate to remit back the Revenue s appeal also back to the file of the Ld. Assessing Officer for de novo considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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