9911796707
TMI Blog2019 (2) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... and SEBI are the statutory authorities appointed by the Govt. of India to ensure that there is no stock rigging or manipulation - The facts of the case and the evidence in support of the evidence clearly support the claim of the assessee that the transactions of the assessee were genuine and the authorities below was not justified in rejecting the claim of the assessee exempted u/s 10(38) of the Act on the basis of suspicion, surmises and conjectures. The facts of the case of the assessee are identical with the facts in the case of Kiran Kothari HUF [2017 (11) TMI 1075 - ITAT KOLKATA], wherein the co-ordinate bench of the Tribunal has deleted the addition and allowed the claim of LTCG on sale of shares of M/s TTML. So we, respectfully following the same, set aside the order of Ld. CIT(A) and direct the AO not to treat the long term capital as bogus and delete the consequential addition. Addition as unexplained expenditure towards commission charges of sale of such shares by the operator. We have already held that the transactions relating to LTCG were genuine and not the accommodation entries as alleged by the AO. Consequently the addition is hereby directed to be deleted. We acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share on 14.11.2010 by making a payment of ₹ 20 lakhs. It was taken note by the AO that assessee had purchased the shares under preferential allotment and not through the Stock Exchange; (ii) later the assessee had sold 1,09,000 shares of M/s. TTML from 02.02.2011 to 30.11.2011 on various dates and availed the pre-arranged bogus LTCG of ₹ 2,35,58,171/- for AY 2011-12; (iii) afterwards there was a split by M/s. TTML and the face value of its shares and the assessee's remaining 91000 shares became 9,10,000 shares; (iv) assessee sold his remaining 9,10,000 shares during AY 2012-13 and availed prearranged bogus LTCG of ₹ 2,89,17,929/-. From the aforesaid transactions, the AO was of the opinion that assessee had received an abnormal gain in 12 months of share holding and which is inflated and unrealistic. According to AO, the purchase and sale of this scrip are nothing but colorable device to launder their unexplained money, on which they do not wanted to pay tax. According to AO, this company (M/s. TTML) does not have any financial credibility and no one would invest any amount in its shares. According to AO, the astronomical rise of the value of shares shows that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial regarding the purchase and sale of shares of M/s. TTML found during search which could be termed as incriminating material, question of making any addition on the LTCG/exempt income already duly disclosed by the assessee in the return of income and Balance Sheet could not have been added in the hands of the assessee. Therefore, it was pointed out that the Ld. CIT(A) erred in confirming the addition made by the AO and, therefore, he pleads that the entire addition cannot be sustained and, therefore, need to be deleted. 5. Per contra, the Ld. CIT, DR Shri Sanjay Rai countering the submission of ld AR, that no incriminating materials were seized during search, drew our attention to page no.3 wherein the AO has clearly noted that there was incriminating material found during search which was the basis of addition. Therefore, according to him, the contention of the Ld. AR was factually wrong and since the AO has made the addition based on incriminating material as stated in the assessment order, the additions made are as per law and the case laws relied on by the Ld. AR will not come to the rescue of the assessee and, therefore, according to Ld. DR the addition made is as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was recorded u/s. 131 of the Act and it was brought to our notice that the assessee did not appear in the office of ADIT on 20.11.207 to cross examine Shri Narendra Prabhudayal Sureka. The Ld. DR thus contended that the bogus LTCG was rightly added and the impugned order of the Ld. CIT(A) does not need any interference from our part and needs to be confirmed. 7. In his rejoinder, the Ld. AR brought to our notice that the issue whether the sale consideration/LTCG/exempt income arising from the sale of M/s. TTML is no longer res integra and this Tribunal has already accepted the claim of the assessee based on the documents filed before it that the LTCG claim on sale of M/s. TTML is a genuine and, therefore, its claim of exempt income needs to be allowed and for that the assessee drew our attention to the orders passed by this Tribunal in Kiran Kothary, HUF Vs. ITO 2017 (11) TMI 1075, wherein the Tribunal has upheld the claim of the assessee in respect to sale of M/s. TTML, which is as under: "9. We have heard the rival submissions and perused the records. We note that in the present case, the appellant had purchased 13500 shares of M/s. Tuni Textile Mills Private Limited on 06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and undertaken the entire transactions. We also find that the assessee has not dealt with any person or broker named in question no.28 of the statement which has been recorded on oath by the survey team and which has been reproduced by the ld. CIT(A) from pages 31 to 36 of the impugned order(Question no.28 finds place in page-35 of the impugned order). We therefore find merit in the submissions of the assessee that the statement recorded on oath during the survey cannot be the sole basis for adverse finding against the assessee. For this we rely on the decision of the Hon'ble Supreme Court in the case of CIT vs Khader Khan Son 352 ITR 480 (SC) wherein it has been held that section 133A (survey) does not empower any income tax authorities to examine any person on oath, hence any such statement lacks evidentiary value and any admission made during the survey cannot by itself be made the basis of addition. We therefore hold that the statement of Shri N.P.Surekha recorded on oath during the survey proceedings cannot be the sole basis to make the impugned addition. We note that the assessee had not purchased the shares by the Preference Share Route as stated by the party before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question. Thus the AO has failed to bring on record any material contained in the purported reports which are having so called adverse impact on the assessee. We further find that the company under scanner was having share Capital as on 31.03.2013 of ₹ 13.18 crores and was having assets worth ₹ 24.25 crores and a turn over of ₹ 19.32 crores and profit of ₹ 1.35 crores. Thus the allegation that these companies did not have financial credentials is not correct and so is perverse and therefore we do not subscribe to the said finding and necessarily negate the finding. At the cost of repetition, we find that the transactions of sale of shares by the assessee was duly backed up by material/evidence including contract notes, demat statement, bank account reflecting transactions, the stock brokers have confirmed the transactions (pages 24-25 of the paper book), the shares having been sold on the online platform of the stock exchange and each trade of sale of shares were having unique trade number and trade time. It is not the case of the AO that the shares which were sold on the date mentioned in the contract note were not the traded price on that particular da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his ground no.1 of the revenue is dismissed." We agree with the reasoning of the tribunal on this point also. We do not find any reason to interfere with the impugned order. The suggested question, in our opinion do not raise any substantial question of law." 9.3. In the light of the documents stated i.e. (i to v) in Page14(supra) we find that there is absolutely no adverse material to implicate the assessee to the entire gamut of unfounded/unwarranted allegations leveled by the AO against the assessee, which in our considered opinion has no legs to stand and therefore has to fall. We take note that the ld. DR could not controvert the facts which are supported with material evidences furnished by the assessee which are on record and could only rely on the orders of the AO/CIT(A). We note that the allegations that the assesse/brokers got involved in price rigging/manipulation of shares must therefore consequently fail. At the cost of repetition, we note that the assessee had furnished all relevant evidence in the form of bills, contract notes, demat statement and bank account to prove the genuineness of the transactions relevant to the purchase and sale of shares resulting in lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n both the assessment years. According to Ld. AR, the documents found, which the AO had recorded in his assessment order is nothing but the transactions which are already recorded in the books in the normal course of business. According to Ld. AR, the fact of the assessee receiving the LTCG/exempt income, for both the years have been duly reflected in the return of income and Balance Sheet filed along with the return of income and which are already with the department before the search. So, according to him, there is no question of any undisclosed income in respect of sale of these scrips of M/s. TTML. It was pointed out by the Ld. AR that the documents termed by the AO as incriminating i.e. CJ-2 and CJ-13 is nothing but loose sheets of papers which though the AO has termed it as incriminating is in no way can be classified as incriminating material because there is nothing emerging from these papers which will point a finger or has a nexus with any undisclosed income for both the assessment years as wrongly inferred by AO. The Ld. AR painstakingly took us through the documents showed at pages 33 to 44 of paper book which is marked as CJ2 placed at pages 45-69 marked as CJ-13 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents to prove the purchase and sale of the scrips. According to Ld. AR, even if some persons were involved in nefarious practice of purchase of such shares and thereafter engaged in pre-arranged sale of M/s. TTML that cannot be the sole basis for taking a view that the assessee was also involved in such pre-planned transaction unless there is some material/evidence to suggest/substantiate that assessee was in fact involved in the conspiracy or he was also active participant in the racket of purchase and later stage managed sale of shares. According to Ld. AR, since the statement of Shri Narendra Prabhudayal Sureka in no way have named the assessee/broker as a participant in this purported stage managed show or conspiracy leading to it as alleged, the statement of shri Narendra Prabhydayal Sureka cannot be called as an incriminating statement qua the assessee and, therefore, since there was nothing incriminating against the assessee or his brokers in respect to sale of shares of M/s. TTML, the question of cross examination does not arise. Therefore, according to Ld. AR, on a general statement of Shri Narendra Prabhudayal Sureka who might have taken part in illegal activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to us, can by no stretch of imagination be termed as incriminating material, rather we note that these were the very same documents the assessee had already disclosed before search and on the strength of which the assessee, in fact had claimed authentically to his transaction for claiming LTCG. So, we find that there is no incriminating material unearthed against the assessee during search as misunderstood by the AO and the Ld. CIT DR before us. Only other incriminating material according to Ld. DR before us is the statement of Shri Narendra Prabhudayal Sureka which has been recorded by the department. The AO has reproduced his statement in the assessment order itself. After carefully going through the contents of the statement we note that this statement was recorded by the department before the search i.e. on 02.06.2015 whereas search took place on 12.08.2015. So admittedly no incriminating statement was recorded during search under section 132(4) of the Act. As we noted this statement was recorded by the department before the search and the inference that can be drawn is that the search team leaders would be aware of the statement of Shri Narendra Prabhudayal Sureka in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate will be only one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." v. In absence of any incriminatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arendra Prabhudayal Sureka it reveals that he is the Managing Director of M/s. TTML. His statement has been recorded on 02.06.2015 (before search which happened on 12.08.2015) (appeal paper pages 72 to 81). From a perusal of the statement of Shri Narendra Prabhudayal Sureka we note that his company M/s. TTML was not a fly by night company. It has a running factory which is situated at B4/5, MIDC, Murbad, Thane and he was the Managing Director of the company since 06.07.1987 and this company was listed with the BSE in 1996 and it was in the business of manufacturing cloth from yarn. It is discerned that M/s. TTML was delisted due to non-compliance with the statutory requirement of BSE and the company incurred losses so, had applied with the BIFR in the year 2000 and was declared as a sick unit on 16.04.2002. Thereafter, he said that when the proceedings were going on at BIFR, since no financial institution was forthcoming to finance the company, he came into contact with Shri Manish Baid who suggested him the route of preferential shares to raise capital and he has replied to question no. 12 that the list of preferential allottees was given at annexure I (which is not annexed befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund was infused as capital into his company M/s TTML and then M/s TTML was again listed in BSE. Thereafter, the share value purchased by assessee for ₹ 10/- per share started rising, which according to shri Sureka was as per the scheme and plan of shri Baid and inorder to riggle out of the question how the price of shares of M/s TTML suddenly rose to astronomical price has put the blame on shri Baid. So, if shri Sureka has to be believed, then it turns out that he was an accomplice along with shri Baid, for collection of ₹ 7.5 cr by way of preferential share allotment, which paved the way for LTCG. Though we note that shri sureka has conveniently palmed off the wrong acts attributable to shri Baid alone and the department has not spelled out what action has been taken against Shri Narendra Prabhudayal Sureka in the light of his own statement or it has been examined as to whether his statement is self serving or not, could have been cleared only if statement of shri Manish Baid was recorded which clearly could have brought out the correct facts. So without the statement of Shri Manish Baid we cannot attribute any wrong doing on the part of assessee. From the aforesaid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt is available at pages 86-91 of paper book. We note that the shares were debited in the de-mat account in various dates as per the various dates · in consonance with the contract notes. Copy of De-mat transaction statement is found placed at paper book page 92. Since assessee purchased shares of this scrips of 1,09,000 at ₹ 10,90,000 and sold the shares for ₹ 2,46,83,694, he made a capital gain of ₹ 2,35,93,694. Copy of long term capital gain statement is available at page 93 of paper book. Since the sale was made after one year of holding and after payment of STT and transactions took place in the floor of the recognized stock exchange (BSE), the income was computed by assessee under long term capital gain which is exempted from tax u/s. 10(38) of the Act. The assessee produced all relevant documents in support of the transaction including purchase bills, sale contract notes, bank statement and D-mat statement reflecting purchase and sale of shares the LTCG claim of assessee cannot be brushed aside without adverse material to suggest it as bogus. We note that the Balance 91,000 shares were continued to be reflected in the de-mat statement. In the computa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis. After the lock-in period of one year, the shares were placed in the De-mat Account. Some shares were sold in BSE on various dates starting from 02/02/2011 onwards after payment of all statutory levies including STT & brokerage. Thus, after the shares were held for more than 1 year, the same was sold on recognized stock exchange and necessary STT paid. Hence the assessee is legally eligible to avail the exemption u/s. 10(38) of the Act and the AO only can deny the claim on cogent grounds with material to substantiate his conclusion that assessee indulged along with persons' statement recorded (which is supported by some material to suggest) that assessee was beneficiary to the whole stage managed claim of exempt gain. 16. AO invoked section 68 of the Act treating the share transaction as sham and added the LTCG of ₹ 2,35,93,694 invoking section 68 of the Act. Section 68 of the Income Tax Act, reads as under: "Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Ld. CIT(A). In this respect, we take note of the observation made by the Coordinate bench of this Tribunal in the case of Navneet Agarwal Vs. ITO, Kolkata, ITA No. 2281/Kol/2017 dated 20.07.2018: "The Hon'ble Supreme Court in the case of Omar Salav Mohamed Sait reported in (1959) 37 ITR 151 (S C) had held that no addition can be made on the basis of surmises, suspicion and conjectures. In the case of CIT (Central), Kolkata vs. Daulat Ram Rawatmull reported in 87 ITR 349, the Hon'ble Supreme Court held that, the onus to prove that the apparent is not the real is on the party who claims it to be so. The burden of proving a transaction to be bogus has to be strictly discharged by adducing legal evidences, which would directly prove the fact of bogusness or establish circumstance unerringly and reasonably raising an interference to that effect. The Hon'ble Supreme Court in the case of Umacharan Shah & Bros. Vs. CIT 37 ITR 271 held that suspicion however strong, cannot take the place of evidence. In this connection we refer to the general view on the topic of conveyance of immovable properties. The rates/sale price are at variance with the circle rates fixed by the Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eflected and in the Profit & Loss account, the LTCG as earned by the assessee, was disclosed. The AO has not found fault with the genuineness of such documents. In fact the sale transaction was executed through several independent bodies like the depository participant, the banker, the stock exchange etc. 23. The assessee sold the shares on the BSE through his stock broker M/s GCM Securities Limited. In support of the sale of shares contract note in the prescribed form was issued by the broker. The contract note included relevant information such as date and time of transaction, contract note number, settlement number, details of service tax paid, details of brokerage and details of STT paid. No material was brought on record by the AO that the information contained in contract note was false or that the sale of shares actually never happened. On the contrary the information shows that the assessee carried out sale through BSE, the sale was made at the prevailing price at the Exchange and the consideration was received through BSE via banking channel after delivery of shares from the de-mat account. 24. After disposal of shares, delivery of shares was made thorough assessee's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the paper book), backed by a contract note (page 22 of the paper book) and shares were credited in the demat accounts (page 25 of the paper book) and duly reflected in the books of account. In the light of these evidences on record we are of the opinion that the purchase of shares per-se cannot be held to be bad. 9.2. We find force in the contentions of the Ld. AR that the AO and CIT(A) was not justified in rejecting the claim of the assessee on the basis of theory of surrounding circumstance, human conduct and preponderance of probability without bringing on record any relevant legally admissible evidence against the assessee. For the said proposition we rely on the judgment of the Special Bench of Mumbai Bench in the case of GTC Industries Ltd. (supra). The various facets of the contention of the AO, to rope in the assessee for drawing adverse inferences which remain unproved based on the evidence available on record are not reiterated for the sake of brevity. The principles laid down in various case laws relied upon by the Ld. AR are also not reiterated for the sake of brevity. We further find that neither the reports relied on by the AO has not been brought on record nor i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the group have purchased and sold shares of similar companies through the same broker cannot be a ground to hold that the transactions are sham and bogus, especially when documentary ITA Nos. 93 to 99/RPR/2014 & C.O. Nos. 12 to 18/RPR/2014 . A.Y. 2004-05 10 produced to establish the genuineness of the claim. From the documents produced, it is seen that the shares in question were in fact purchased by the assessees on the respective dates and the company has confirmed to have handed over the shares purchased by the assessees. Similarly, the sale of the shares to the respective buyers is also established by producing documentary evidence. It is true that some of the transactions were off-market transactions. However, the purchase and sale price of the shares declared by the assessees were in conformity with the market rates prevailing on the respective dates as is seen from the documents furnished by the assessees. Therefore, the fact that some of the transactions were off-market transactions cannot be a ground to treat the transactions as sham transactions. The statement of the broker P that the transactions with the H Group were bogus has been demonstrated to be wrong by produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record, held that purchase contract note, contract note for sates, distinctive numbers of shares purchased and sold, copy of share certificates and the quotation of shares on the date of purchase and sale were sufficient material to show that the transaction was not bogus but a genuine transaction. The purchase of shares was made on 28th April, 1993 i.e.. asst. yr. 1993-94 and that assessment was accepted by the Department and there was no challenge to the purchase of shares in that year. It was also placed before the relevant AO as well as before the Tribunal that the sale proceeds have been accounted for in the accounts of the assessee and were received through account payee cheque. The Tribunal was right in rejecting the appeal of the Revenue by holding that the assessee was simply a shareholder of the company. He had made investment in a company in which he was neither a director nor was he in control of the company. The assessee had taken shares from the market, the shares were listed and the transaction took place through a registered broker of the stock exchange. There was no material before the AO, which could have lead to a conclusion that the transaction was simplicitier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that crossexamination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their exfactory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s could never have been transferred to demat account. Shri Mukesh Choksi may have been providing accommodation entries to various persons but so far as the facts of the case in hand suggest that the transactions were genuine and therefore, no adverse inference should be drawn. 18. In the light of the decisions of the Hon'ble Supreme Court in the case of Andaman Timber Industries (supra) and considering the facts in totality, the claim of the assessee cannot be denied on the basis of presumption and surmises in respect of penny stock by disregarding the direct evidences on record relating to the sale/purchase transactions in shares supported by broker's contract notes, confirmation of receipt of sale proceeds through regular banking channels and the demat account. 19. Accordingly, we direct the A.O. to treat the gains arising out of the sale of shares under the head capital gains- "Short Term" or "Long Term" as the case may be. The other grievance of the assessee becomes infructuous." The transactions were all through account payee cheques and reflected in the books of accounts. The purchase of shares and the sale of shares were also reflected in Demat account statements. The sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were stage managed. The Hon'ble High Court held that the opinion of the AO that the assessee generated a sizeable amount of loss out of prearranged transactions so as to reduce the quantum of income liable for tax might have been the view expressed by the ld AO but he miserably failed to substantiate that. The High Court held that the transactions were at the prevailing price and therefore the suspicion of the AO was misplaced and not substantiated. iii)CIT V. Lakshmangarh Estate & Trading Co. Limited [2013] 40 taxmann.com 439 (Cal) - In this case the Hon'ble Calcutta High Court held that on the basis of a suspicion howsoever strong it is not possible to record any finding of fact. As a matter of fact suspicion can never take the place of proof. It was further held that in absence of any evidence on record, it is difficult if not impossible, to hold that the transactions of buying or selling of shares were colourable transactions or were resorted to with ulterior motive. iv) CIT V. Shreyashi Ganguli [ITA No. 196 of 2012] (Cal HC) - In this case the Hon'ble Calcutta High Court held that the Assessing Officer doubted the transactions since the selling broker was subjected to SEB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ld AO in earlier years, the same could not be treated as bogus simply on the basis of some reports of the Investigation Wing and/or the orders of SEBI and/or the statements of third parties. In support of the aforesaid submissions, the ld AR, in addition to the aforesaid judgements, has referred to and relied on the following cases:- (i) Baijnath Agarwal vs. ACIT - [2010] 40 SOT 475 (Agra (TM) (ii) ITO vs. Bibi Rani Bansal - [2011] 44 SOT 500 (Agra) (TM) (iii) ITO vs. Ashok Kumar Bansal - ITA No. 289/Agra/2009 (Agra ITAT) (iv) ACIT vs. Amita Agarwal & Others - ITA Nos. 247/(Kol)/ of 2011 (Kol ITAT) (v) Rita Devi & Others vs. DCIT - IT(SS))A Nos. 22-26/Kol/2p11 (Kol ITAT) (vi) Surya Prakash Toshniwal vs. ITO - ITA No. 1213/Kol/2016 (Kol ITAT) (vii) Sunita Jain vs. ITO - ITA No. 201 & 502/Ahd/2016 (Ahmedabad ITAT) (viii) Ms. Farrah Marker vs. ITO - ITA No. 3801/Mum/2011 (Mumbai ITAT) (ix) Anil Nandkishore Goyal vs. ACIT - ITA Nos. 1256/PN/2012 (Pune ITAT) (x) CIT vs. Sudeep Goenka - [2013] 29 taxmann.com 402 (Allahabad HC) (xi) CIT vs. Udit Narain Agarwal - [2013] 29 taxmann.com 76 (Allahabad HC) (xii) CIT vs. Jamnadevi Agarwal [2012] 20 taxmann.com 529 (Bombay HC) (xi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the AO was not justified in refusing to allow the benefit under section 10(38) of the Act and to assess the sale proceeds of shares as undisclosed income of the assessee under section 68 of the Act :- (i) ITO vs. Ashok Kumar Bansal - ITA No. 289/Agr/2009 (Agra ITAT) (ii) ACIT vs. Amita Agarwal & Others - ITA Nos. 247/(Kol)/ of 2011 (Kol ITAT) (iii) Lalit Mohan Jalan (HUF) vs. ACIT - ITA No. 693/Kol/2009 (Kol ITAT) (iv) Mukesh R. Marolia vs. Addl. CIT - [2006] 6 SOT 247 (Mum) 34. We note that the ld. D.R. had heavily relied upon the decision of the Hon'ble Bombay High Court in the case of Bimalchand Jain in Tax Appeal No. 18 of 2017. We note that in the case relied upon by the ld. D.R, we find that the facts are different from the facts of the case in hand. Firstly, in that case, the purchases were made by the assessee in cash for acquisition of shares of companies and the purchase of shares of the companies was done through the broker and the address of the broker was incidentally the address of the company. The profit earned by the assessee was shown as capital gains which was not accepted by the A.O. and the gains were treated as business profit of the assessee by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
