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TMI Blog2012 (4) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... d report as mentioned in the appeal order. 1.03. The assessment order as well as the CIT(A) order is in violation of principle of natural justice equity as much as no adequate opportunity given to your appellant to cross exam the said Vijay Bhagwandas, the witness of the department. 2. The ld CIT(A) erred in treating the period of holding of share from the date of dematerialisation instead of the date of purchase of shares in physical form. 2.1 The ld CIT(A) erred in appreciating the various documents in support of long term capital gain declared by your appellant. 2.2 The ld CI(A) has erred in distinguish the difference between speculation, trade delivery base trade in respect of CMC shares. 3. Briefly sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. Ans. 6 Due to my health problem, I am not doing any trading of share in M/s. Vijay Bhagwandas Co in respect of the above mentioned purchase bill, I confirm that this is a bogus bill issued by somebody. 5. The assessee had shown purchase of shares in April, 2003. As per the AO, said shares were not purchased through stock exchange and payment was also not through bank account. The AO further noted that the assessee had sent shares of FTEL for dematerilsation with NDSL in June and July, 2004 and finally sold them on 28.6.2004, 29.6.2004 and 9.7.2004. The AO treated the sale proceeds of the shares as income from undisclosed sources . 6. The CIT(A) while deciding the appeal filed by the assessee held that the sale of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive nature and hence, did not find place in the Demat Account. In support of his propositions, he relied upon the following judicial precedents: i) ACIT vs. Ajay Nawandar, 33 DTR(Mumbai)(Trib) 452 ii) DCIT vs. Ms Indiramma, 6 SOT 261(Bang) iii) ITO vs. Smt. Bibi Rani Bansal, 133 TTJ 394(Agra) iv) ITO vs. Shri Jitendra J Gandhi (ITA No.5627/M/2007) 8. On the other hand, learned Departmental Representative submitted that the broker Shri Vijay B.Shah had admitted that he was not maintaining books of account that onus was on the assessee to prove the genuineness of the transaction especially the dates of purchase, that the assessee did not issue any cheques for purchasing the shares of TEFL, that the shares were dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee was a colourable device adopted by her to introduce unexplained cash into her books. He treated it as income from undisclosed sources. The CIT(A) was of the opinion that the assessee had purchased the shares in the month of June, 2004 instead of April, 2003. She was of the opinion that the sale of the shares of TFEL was genuine. The AO was directed to tax gain on sale of shares as STCG. Thus, as per the CIT(A), the transaction in question was not device to introduce unexplained cash into the books of account of the assessee. We were informed that the AO had not preferred any appeal against the order of the CIT(A).In these circumstances, we restrict ourselves to the order of the CIT(A) that has been challenged by the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that the shares of FTEL were purchased in June/July 2004 and not in March, 2003. Failure of the counsel of the assessee to produce the books of account of the broker Shri Vijay B Shah cannot be held against the assessee. 12. The CIT(A) has also referred to the statements of Shri Vijay B Shah. From perusal of assessment order, it is clear that the AO has not reproduced the questions and answers as recorded by the ADIT(Inv), Mumbai. Questions put to the broker by the ADIT do not find place in the order at all.So,it is difficult to understand the particular context in which replies were given. Similarly, answers are not fully reproduced by the AO. We fail to understand as to why a copy of the relevant portion of the question-answer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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