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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 ..... ng purchases and sale. This information received by the Department from the said broker have neither been rebutted nor any crossexamining has been done from the broker to ascertain the fact about the correct timing of trade AO has not made any specific enquiry from the broker to ascertain the correct time and date of purchase after the information from the stock exchange even after second round of proceedings. The assessee can prove from the documents which are made available from the broker and if there is any discrepancy at the end of the broker regarding timing of purchase then broker alone could have clarified. Thus, in view of material on record, we hold that the purchases made by the assessee on 11.06.2003 cannot be disbelieved and accordingly the transaction of share is treated as Long Term Capital Gain. - Decided in favour of assessee. - I.T.A. No.6324/DEL/2014 - - - Dated:- 29-10-2018 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Appellant : Shri Rajiv Saxena, Advocate For The Respondent : Shri N.K. Bansal, Sr.D.R. ORDER PER AMIT SHUKLA, J.M.: The aforesaid appeal has been filed by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shares were 12:33:49. From this information the Assessing Officer has concluded that assessee could not prove the purchases. The ld. CIT(A) in the first round has accepted the assessee s contention that the purchases were made on 11.06.2003. However, the Tribunal has remanded the issue back to the file of the Assessing Officer stating that the very transaction of purchase of share on 11.06.2003 has been disputed by the Assessing Officer and held that clinching evidences establishing the purchase of shares on 11.06.2007 is not on record and AO was directed to decide afresh. Again, in the set aside proceedings, the assessee filed the same set of documents for proving the purchases and Assessing Officer has referred to the various inquiries made during the course of original proceedings, however did not carry out any fresh enquiry. The relevant observation of the Assessing Officer reads as under: There cannot be any dispute with regard to this fact, but the question to be examined in this case is as to whether or not the broker himself had those shares with him on the date when contract note was issued. Various enquiries were made during the course of original proceedings, and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24-09-2007 Letter from Shivmangal Securities Pvt. Ltd. Dp of Bubna Stock Broking Services Ltd. to ACIT Kolkata in response to notice u/s 131 27-09-2007 Letter from Bubna to ACIT Kolkata submitting ledger account, Demat statement of shares transactions done with the assessee confirming sale and purchase. 30-11-2007 Another letter from Bubna to ACIT Kolkata confirming sale and purchase by submitting ledger copies. 07-02-2006 Letter from Asst. Roc West Bengal to ITO Ward 31(3) New Delhi u/s 133(6) in the case of assessee. 03-04-2007 Letter from Sam Global Securities Ltd. to ITO Ward 31(3) New Delhi u/s 133(6) in the case of assessee. 09-11-2010 Submissions before AO submitting contract note, Bill, statement of account and 2 letters from Bubna Stock Broking Services Ltd. in connection with confirmation of purchase and sale of shares through them and seeking opportunity to cross examining the witnesses. -11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement 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 paper book. From the copy of the ledger account of the assessee in the broker s book, it is seen that the shares have been delivered on 13.06.2003 and amount has been received by him on various dates starting from 24.06.2003 to 31.03.2004. Thereafter, the assessee had sold the shares from 23.08.2004 to 31.01.2005 for a sum of ₹ 10,75,280/-, which transaction is not disputed. From the records, it is seen that Assessing Officer had written a letter to Calcutta Stock Exchange, wherein they have given the trade details of shares of Sangotri Construction Ltd. carried out on 11.06.2003, which showed that the trade timing started from 12:08:56 to 12:33:49. Based on this information, it has been concluded by the Assessing Officer and by the Ld. CIT(A) that the broker of the assessee had not purchased the shares on 11.06.2003. After considering all the material facts discussed in the impugned order, we find that sole reliance placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion, 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 transaction, adverse inference cannot be drawn upon the assessee, when there is no other material or information that either limb of the transaction, that is, purchase or sale are not genuine or is a sham transaction. Here it is not a case of claim of bogus Long-term Capital gain through some accommodation entry, albeit issue is, whether the transaction of shares has resulted into a short-term gain or long-term capital gain. Even if one goes by theory of preponderance of probability on the basis of material on record then the probable factors in favour of the assessee are: - i) Broker s contract note confirming the purchase of the shares on 11.06.2003. ii) Bill for purchase of shares for the same date given by the Broker. iii) Copy of ledger account of the assessee in the books of the broker iv) Confirmation by the company M/s. Sangotri Construction Ltd. that shares were transferred in the names of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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