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TMI Blog2014 (12) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... ness of the share transactions - Decided in favour of assessee. - I.T.A. No. 7637/MUM/2013 - - - Dated:- 1-12-2014 - Shri I. P. Bansal, JM,JJ. For the Appellant : Shri Hari S. Raheja For the Respondent : Shri Neil Philip ORDER This is an appeal filed by the assessee and it is directed against order passed by Ld. CIT(A) -25 Mumbai dated 4/11/2013 for assessment year 2005- 06. 2. The assessee has filed amended grounds of appeal and it was submitted that earlier grounds of appeal which include the issue regarding validity or otherwise of re-assessment proceedings may be ignored. Accordingly, the following amended grounds were considered for adjudication. On the facts and in the circumstances of the case and in law the CIT(Appeals) erred in confirming the order of the Assessing Officer holding that the claim of loss of ₹ 3,33,956/- is not genuine and in upholding the addition of the same as income from other sources. The appellant submits that the loss is genuine and without prejudice to the claim of the appellant the same has been wrongly treated as income from other sources. 3. In the present case assessee had entered into transactions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 390/Mum/2013 ,A.Y. 2003-04 Order dated 10/07/2013. 4. On the other hand Ld. DR relied upon the order passed by the AO and Ld. CIT(A). It was submitted that the purchase and sale shown by the assessee was bogus as those transactions were entered into by the assessee through M/s. Alliance Intermediaries Network Pvt. Ltd. which was a concern run by Mr. Mukesh Choksi upon whom the search was made and who admitted that he is indulged in bogus purchase and sale of shares. 5. I have heard both the parties and their contentions have carefully been considered. The sale and purchase of shares shown by the assessee are supported by documentary evidence which has not been refuted by AO or Ld. CIT(A). The addition is based simply on information according to which the assessee has entered into the transactions with one of the concern engaged in the bogus billing. However, there is no material on record to suggest that the transactions entered into by the assessee were bogus either in the terms of sale and purchase or in the terms of rates at which these shares were purchased and sold. Rather assessee has filed evidence to show that these shares were purchased for a price which were preva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. The case relied upon by the learned Counsel are not directly applicable to the facts of the case as in those cases the sale proceeds are treated as undisclosed income denying the entire transaction as such, whereas, in the present case, the Assessing Officer did not treat the sale of shares as bogus. He has only examined the purchase of shares and doubted the date of purchase. But in the computation he has given benefit to the same cost of purchase of shares and taxed the long term capital gain offered as short term capital gain only. As far as the date of purchase is concerned, the evidence on record indicate that the assessee had indeed earned speculation profit by sale of APTECH shares which the Assessing Officer has not doubted. Further the assessee also suffered speculation loss as stated above in February, 2001 and debit and credit entries pertaining to same broker were shown in the balance sheet in the return filed for the AY 2001-2002 in August, 2001. There is also a mention of purchasing of shares of the company in the return. It is also on record that the said company vide letter dated 30-6-2000 had transferred the shares in the name of the assessee with the folio No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement itself indicate that they were capital gains earned by the assessee as speculation profits and in question No. 4 in the statement Mr. Mukesh Chokshi admits the purchase of 10500 shares of Rashel Agro Tech Ltd. made out of adjusted share profits and therefore confirmed that this is an adjustment transaction . In view of this statement in question Nos. 4 and 5, we are unable to understand how the transactions becomes a bogus one. There is no evidence except this oral statement which is also not submitted for cross-examination to prove/disprove the transaction. Whereas the assessee furnished transaction details, the bank accounts, purchase and sale of other listed companies, speculation profit and loss and also evidence in the form of balance sheet filed much before the said shares were sold. The sale of shares was undertaken in December 2001 whereas the return for AY 2001- 2002 was filed by August 2001 itself indicating the purchase of shares and outstanding amounts to M/s. Golden Finvest Ltd in the statements. In view of the documentary evidence in favour of the assessee, we are unable to accept the contention of the Assessing Officer based on the statement which is also unsu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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