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TMI Blog2011 (5) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds: 1) On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in direction to allow the benefit of concessional rate of taxation u/s 111A of the Income tax Act, 1961 on Capital Gain ₹ 38,51,861/- on the transactions of shares on which no security transaction tax has been paid by the assessee. 2) On the facts and in the circumstances of the case, the Ld. CIT(A) ought to have upheld the order of the A.O. on this issue. 2. In the case of Smt. Mitaben B Panwala in I.T.A.No. 4083/Ahd/2008, the grounds are the same and only the capital gain involved is ₹ 38,11,542/. 3. The facts relating to the case are that the assessee had shown sale of shares of Seagull Leafin on which it has shown to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the head capital gains. Even if it is considered as short term capital gain, since the transaction is not through stock exchange with payment of STT and hence, the benefit of concessional rate of income-tax cannot be allowed. 4. He accordingly applied the normal tax rate of 30% on the shares profit of ₹ 38,51,861/-. 5. When the matter came up before CIT(A), he found that the A.O. was incorrect to hold that shares were not listed with NSE as they were listed with Bombay Stock Exchange. However, Ld. CIT(A) finally relied on the note of the broker where it was mentioned through NSC/5 2004 meaning thereby that shares were transacted through NSE. When it was enquired form NSE, it denied to have transacted in shares as claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down u/s 111A of the Act were not fulfilled. It is the AR s contention that STT had been paid. The payment of such tax does not involve any voucher and is to be paid only in Form No.10D which is the prescribed Form under Rule 20AB. The evidence of payment was the deduction made by the broker in the bills raised by them and such bills had been furnished both before the A.O. and also in appellate proceedings. Even otherwise, if there was no evidence on record, the same should have been called for. The AR has once again furnished the bills raised by the broker. The broker had adjusted ht STT paid form the amounts payable to the assessee. I have carefully considered the submissions of the AR and I have also gone through the bilk rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Ltd. has clarified by a certificate placed at page 30 of the paper book that sum of ₹ 3654.79 is a security transaction tax which has been deducted from the sum payable to the assessee. The details of transactions done from the assessee are mentioned by the broker as under: We have sold the following listed shares through the Mumbai Stock Exchange on behalf of Ritaben Bhupendrakumar Panwala: Bill No.M18904/118045 Set No.2004189 Bill Date 23./12.2004 Security Name: Seagull Quantity 166600 Amount per share ₹ 29.23 Total amount ₹ 48,69,787/- Securities Transaction Tax ₹ 3654.79/- We have deducted ₹ 3,654.79 as a Security Transaction tax from above transactions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto force; and (b) such transaction is chargeable to securities transaction tax under that chapter; The tax payable by the assessee on the total income shall be the aggregate of- (i) the amount of income-tax calculated on such short term capital gains at the rate of [fifteen] per cent; and (ii) the amount of income tax payable on the balance amount of the total income as if such balance amount were the total income of the assessee; .. From a reading of above section, we find that there are only two conditions to be satisfied for claiming concessional rate of tax. The 1sts condition is that transaction of shares should have been taken place after Finance Act No.2 of 2004 has come into force w.e.f. 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t treated by the revenue as STT whereas the broker had clarified by the certificate issued subsequently that it is in fact STT. There is no contrary material to hold that sum of ₹ 3,654.79 is not in fact STT but some other charges except the apprehension of the A.O. which is not found substantiated. We, accordingly uphold the contention of the assessee and as accepted by Ld. CIT(A) that the sum of ₹ 3,654.79 is in fact STT duly deducted by the broker from the payments made to the assessee on sale of shares. 8. The other issue raised by the Ld. D.R. is that these shares transactions are not genuine. The CIT(A) has rejected these contentions. Further, there is no ground raised by the revenue about the alleged genuineness accept ..... X X X X Extracts X X X X X X X X Extracts X X X X
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