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TMI Blog2012 (6) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... ds as under: "2. On the facts and circumstances of the case as well as in law, the Learned CIT (A) has erred in confirming the action of Learned Assessing Officer in treating Long Term Capital Gain of Rs. 2,67,247/- as Income from Other sources without considering the facts and circumstances of the case." 3A. The facts in brief are as under. The information was received by the A.O. from the DDIT (Inv.), Mumbai in respect of search action conducted on M/s. Mahasagar Securities P. Ltd. (Now Alag Securities Pvt. Ltd.) and group cases. The A.O. has observed that a scam was exposed in which bogus transactions of the shares and commodities were shown and the assessee was one of the beneficiaries. The A.O. has further observed that one Shri Mukes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir claim in respect of long-term capital gain and shortterm capital gain. He submits that on identical set of facts the issue has been considered by the Tribunal. The Ld. Counsel filed the copies of the Tribunal decision by way of compilation as under: i) Mukesh R. Marolia vs. Addl. CIT -6 SOT 247 ii) Rajnudevi Chowdhary vs. ITO -ITA 6455/M/2007(Bom) iii) ITO vs. Truptic Shah -ITA 6455/M/2007(Bom) iv) Chandrakant Babulal Shah -ITA 6108/M/2009(Bom) v) ACIT vs. Shri Ravindrakumar Thshinwal-ITA5302/M/2008(Bom) 5. He, therefore, pleaded for accepting the claim of the assessee in respect of long-term capital gain. I have also heard the Ld. D.R. 6. I find that in the present case, the assessee has produced the bills showing the purchase of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter dated 30-6-2000 had transferred the shares in the name of the assessee with the folio No. 15021 and certificate Nos. 105744 to 105848. The Assessing Officer neither questioned the said company nor disproved the transfer of share certificates by 30/6/2000. The only basis for arriving at the conclusion that the transaction is not genuine is on the basis of the statement given by Mr. Mukesh Chokshi on 20-6-2004/20-6-2002 before the DDIT (Inv.) with reference to certain transactions undertaken by Mr. Mukesh Chokshi and his group of companies, mainly Gold Finvest Pvt. Ltd. Richmond Securities and Alembic Securities, which are dealing in interconnected stock exchange/NSC. Most of the enquiries pertains to the transactions in interconnected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity to cross examine Mr. Mukesh Chokshi and when an opportunity was given and assessee was present Mr. Mukesh Chokshi was not available. The only basis for this above statement is that the payments are not made immediately but even statement 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 submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant. Hence, Assessing Officer had rightly added the amount by and the action of the Assessing Officer in making this addition is confirmed treating it as STCG". In arriving at this conclusion, the CIT (A) presumed that assessee could have paid full payment of Rs. 16 lakhs by way of cash which was not the case of the Assessing Officer either. There is no evidence even to presume these observations of the CIT (A) as stated above. 7. The facts are identical in this case as in the case of Chandrakant Babulal shah (supra). I hold that the assessee has proved the genuineness of the share transactions and there is no justification to disallow the claim of the assessee in respect of the long-term capital gain. I, accordingly, direct the A. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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