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TMI Blog2018 (11) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No.1353/Del/2009, wherein the order of the ld. CIT(A) has been set aside and matter was restored back to the file of the Assessing Officer for the purpose of adjudicating, as to whether the assessee had purchased shares on 11.06.2003 or not. The Revenue's case was that the purchase of the shares should be reckoned from the date when it was transferred to the DEMAT account of the assessee on 28.07.2004 and hence the sale of shares was treated as Short-Term Capital Gain and the exemption claimed by the assessee u/s.54 was denied. The relevant direction of the Tribunal has been incorporated by the Assessing Officer as well as by the ld. CIT(A) in the impugned order. The assessee claimed to have purchased 70,000/- shares of SCL through broker, M/s. Bubna Stock Broking Services Ltd. on 11.06.2003 which got transferred to DEMAT account of the assessee on 28.07.2004. In support of the claim that shares were purchased on 11.06.2003 the assessee had produced; i) contract note issued by the Broker dated 11.06.2003; ii) bill dated 13.06.2003 showing delivery of 14,000 shares of HCL for Rs. 17,280/-; iii) ledger account of the assessee in the accounts of the broker for the period 31st Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the Assessing Officer holding that there is a difference in the timing of the trade for purchase of shares on 11th June, 2003 which was evident from the information received from Calcutta Stock Exchange which showed that the time of final transaction was 12:33:49 and all the transaction took place between the time 12:08:56 to 12:33:49. Thus, when the last transaction had taken place at 12:33:49, then trade timing noted in the brokers note at 13:19 does not indicate that assessee had actually purchased any shares by the broker on that date and no explanation has been filed by the assessee in this regard. 4. Before us, ld. counsel for the assessee, Mr. Rajiv Saxena has given following chronology of events of entire evidences and inquiry conducted in the case of the assessee: - 11-06-2003 Contract note issued by Bubna Stock Broking Services Ltd. for purchase of shares of Sangotri company. 13-06-2003 Bill showing delivery of 14,000 shares of Sangotri construction for Rs. 70,280/- Ledger account of the assessee in the accounts of Bubna Stock Broking Services for the period 20 March 2003 to 31 march 2004 showing purchase of shares for Rs. 70,280/- Ledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a discrepancy in the timing of the trade as noted in the broker's note and the information received from Calcutta Stock Exchange, then it can be safely presumed that no such transaction has been taken place on 11.06.2003. Thus, order of the Assessing Officer and ld. CIT(A) needs to be confirmed. 7. We have heard the rival submissions and also perused the relevant facts and material on record. Here, the only issue is, whether the purchases and sale of shares of Sangotri Construction Ltd. is to be treated as Short Term Capital Gain or Long-Term Capital Gain. The assessee's claim is that it was purchased on 11.06.2003, whereas the Revenue's case is that the date of purchase should be reckoned from the date when the shares were transferred to DEMAT account. From the perusal of the contract note issued by the broker, it is seen that assessee had purchased 14,000 shares in two lot (10,000 + 4,000) for sum of Rs. 70,280/-. The settlement ending date has been given on 11.06.2003 and trade time for purchase has been shown at 13:19:08 or at 13:19:19. Further, in his bill dated 13.06.2003 the said shares have been delivered to the assessee, the copy of which is appearing at page 2 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e SCL shares on 11.06.2003 and had also issued contract note and bill and when AO had sought all the information from him, then the time of purchase also should have been sought who alone could verified this fact. In so far as assessee is concerned, he has duly adduced all the evidences which was available from the broker to prove the purchases. Now to cast the onus upon the assessee to prove the timing of purchase under these facts and circumstances may not be appropriate when assessee has otherwise proved the purchase and delivery of shares on 11.06.2003 and 13.06.2003 respectively. Simply because, there is a difference in trade time, therefore, the entire purchases is to disbelieved to have been made on 11.06.2003 would not be appropriate and at the same time to reckon the purchase date only from the date of transfer of shares to DEMAT account so as to deny the claim of Long-Term Capital Gain may not be correct. In our opinion, when the matter was remanded to the AO to verify this fact then AO should have enquired from the broker and simply because there was a discrepancy in the trade timing as noted by the broker and as informed by the Stock Exchange about the purchase transact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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