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TMI Blog2016 (9) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... ly trading asset is referred to as current investment. Accordingly, we are of the view that the expression used in the statement given u/s 132(4) cannot be taken as determinative factor for deciding the character of the purchase of shares. On the contrary, the statement given by the assessee that he has been carrying on trading in shares in the name of family members has not been controverted by the revenue. Under these set of facts, we are of the view that there is no reason to doubt the claim that the assessee has carried on trading activities in shares. With regard to the purchase and sale of shares, we notice that the assessee has produced bills in support of the same. The assessee also expressed its inability to support other docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 25.45 lacs assessed by him. - Decided in favour of assessee. - I.T.A. No. 5469/Mum/2006 - - - Dated:- 7-6-2016 - Shri B.R. Baskaran (AM) And Ramlal Negi (JM) Assessee by Shri V.K. Tulsian Department by Shri Sanjeev Jain ORDER Per B.R. Baskaran, AM The appeal filed by the assessee is directed against the order dated 27- 01-2005 passed by Ld CIT(A)-IV, Mumbai and it relates to the assessment year 1995-96. The assessee is aggrieved by the decision of Ld CIT(A) in confirming the addition of ₹ 25.45 lakhs made by the assessing officer as against the income of ₹ 4.58 lacs declared by the assessee. 2. The assessee herein is a Chartered Accountant by profession. He was subjected to search u/s 132 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y set aside the matter to the file of the AO for doing assessment de-nova. In the set aside proceedings also, the assessee did not co-operate and hence the AO completed the assessment again u/s 144 of the Act. Before Ld CIT(A), the assessee explained the reasons for not appearing before the AO and the same was found acceptable to Ld CIT(A). 4. The assessee had submitted that he has carried on the activity of trading in shares in the name of his brother named Shri Sanjay. He further submitted that he has submitted in the sworn statement taken u/s 132(4) of the Act that he has been trading in shares in the name of his family members. He further submitted that he was doing trading activities in cash market through a broker named Shri R.R. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members. Accordingly he treated the shares found during the course of search and also subsequent purchases as his trading stock. The closing stock available as at the year end was valued by the assessee at market value, if it was found to be lower than the cost. We notice that the tax authorities have rejected the claim mainly on the reason that the assessee has admitted in the sworn statement that he has made in undisclosed investment in shares. Further it was noticed that the assessee has declared capital gains on sale of shares. 7. We have earlier noticed that the assessee was practising as Chartered Accountant and he has admitted that he has carried on trading activity in shares in the name of his family members. Under these set of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of dematerialisation scheme, and during those period, the shares used to be traded in cash till the book closure time. Hence, it was not always necessary that the purchase and sales should be routed through the stock exchange. We are also of the view that the inability of the assessee to produce other documents for the reasons beyond his control cannot be used against the assessee. Accordingly, we are of the view that the tax authorities, in the facts and circumstances of the case, are not justified in rejecting the claim of purchase and sale of shares. 9. Having held that the assessee s claim of trading in shares should be accepted, we are of the view that the closing stock valued by the assessee should also be accepted, since the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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