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TMI Blog2019 (12) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... h the BSE and out of these shares 4200 were sold during the year under consideration and the assessee has declared short term capital gain of ₹ 21,82,462 on the sale of these shares. The ld. CIT(A) has categorically established in his findings that these shares issued were not purchased from Radharaman Holding Pvt. Ltd. but 5 lacs shares of Parsoli Corporation Ltd. was purchased through Parsoli Corporation Ltd. and these transactions were not correctly declared in the books of account of the assessee as one of the directors of the assessee company was a relative of the director of Parsoli Corporation Ltd. for the reason of apprehension of action from SEBI. Considering the fact and circumstances, we do not find any reason to interfere in the finding of ld. CIT(A), therefore, the appeal of revenue is dismissed. - ITA No. 1715/Ahd/2012 - - - Dated:- 15-11-2019 - Shri Rajpal Yadav, Judicial Member And Shri Amarjit Singh, Accountant Member For the Assessee : Shri Aseem L. Thakkar, A.R. For the Revenue : Shri Jagdish, CIT-D.R. ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry creditors. The assessee has furnished copy of its account in the books of Radharaman Holding Pvt. Ltd., Chandigarh showing outstanding balance of ₹ 6,49,51,200/- as on 31st March, 2008. The assessing officer has also reproduced copy of account of the assessee in the books of the aforesaid parties as under:- Date Particulars Ch.No. Dr.Amount Cr. Amount Balance. Bill No.BSE0708151 4,16,28,330 4,16,28,330 01/11/2007 Bill No.BSE0708152 2,58,71,669 6,75,00,000 02/11/2007 Being Amt. received 64794 10,00,000 6,65,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale consideration received on sale of aforesaid shares was also reflected in the bank statement and short term capital gain arising out of the sale of such shares amounting to ₹ 2182462/- was duly offered for taxation in the income tax return. It is further submitted that assessee has also made payment to Radharman Holding Pvt. Ltd. for purchase of the shares which was also reflected in the bank statement of the assessee company and the balance outstanding amount of ₹ 6,49,51,200/- was still payable to the said party. In order to verify the assessee s claim of having made part payment to Radharaman Holing Pvt. Ltd., the assessing officer has issued notice u/s. 133(6) to the assessee s bank and as per the information received from the Axis Bank, the assessing officer had noticed that none of the chques were payable to M/s. Radharaman Holding Pvt. Ltd. and cheque no. 64697 was issued in the name of the assessee itself and other cheques nos. 64794 and 64795 were issued in favour of Parsoli Corporation Ltd. In view of the above, the assessing officer observed that assessee has not made any partial payment to Radharaman Holding Pvt. Ltd. The assessing officer has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, during the appellate proceedings the appellant contended that these transactions were not done through Radharamana Holdings Pvt. Ltd. but 5 lac shares of M/s. Parsoli Corporation Ltd. was purchased through Parsoli Corporation Ltd., who is also a registered share broker with BSE. It was also contended that this transaction was not truthfully declared in the books of accounts as one of the directors of the appellant company is a relative of director of Parsoli Corporation Ltd., and by recording this transaction truthfully, the parties were apprehensive of action from SEBl. For this reason the name of M/s. Radharamana Holdings Pvt. Ltd., was inserted in the books of accounts. 4.6 During the appellate proceedings, the appellant has furnished copy of bills which evidences purchase of shares of M/s. Parsoli Corporation Ltd., from M/s. Parsoli Corporation Ltd. itself. The appellant has also filed confirmation torn Parsoli Corporation Ltd., who has confirmed that the appellant was a sundry debtor of ₹ 6,49,51,200/- as on 31/3/2008. These evidences were forwarded to the office of the A.O. and he had made necessary investigations to ascertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to discuss the provisions of this section. The provisions of sec.41 (1) can be invoked, if the following conditions are fulfilled :- (i) In the assessment of an assessee, an allowance or deduction has been made in respect of any loss, expenditure or trading liability incurred by him. (ii) (a) Any amount is obtained in respect of such loss or expenditure, or (b) Any benefit is obtained in respect of such trading liability by way of remission or cessation thereof. (iii) Such amount or benefit is obtained by the assessee; and (iv) Such amount or benefit is obtained in a subsequent year. To invoke provisions of sec.41(1) the A.O. has to prove that any amount is obtained by the appellant in respect of such loss or expenditure or any benefit is obtained in respect of trading liability by way of remission or cessation. There is nothing on record to indicate that the appellant had obtained any benefit in respect of such trading liability by way of remission or cessation. In fact it is proved by cogent evidences that liability of ₹ 6,49,51,200/- exists as on 31/3/2008 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. of Shares Bill No. Amount (Rs.) 27/11/2007 190000 BW/169/11038 2,70,21,857.00 27/11/2007 310000 BW/169/11038 4,04,78,143.00 6,75,00,000.00 The assessee has also furnished the actual bill issued by the broker viz. Parsoli Corporation Ltd. along with other evidences for purchase of Parsoli Corporation Ltd. which was off market transaction. It is also submitted that one of the directors of the assessee company was a relative of director of the company Parsoli Corporation ltd., therefore, to avoid any action from SEBI, the transaction was shown in the name of Radharaman Pvt. Ltd. and confirmation was also furnished in the name of Radharaman Holding Pvt. Ltd. Accordingly, the outstanding liability was shown in the name of Radharaman Holding Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer has made inquiry only in the last two weeks prior to the limitation period and issued a show cause to the company on the basis of denial of Radharaman Holding Pvt. Ltd. vide their rely dated 27th December, 2010. Therefore, the assessee could not place the correct facts and evidences before the assessing officer in the short available period of three days. In view of the above facts, the assessee has contended before the ld. CIT(A) that it was prevented by sufficient cause for producing the aforesaid facts and evidences before the assessing officer and requested to admit the same as per provision of rule 46 of the IT Rule 1962. Therefore, the ld. CIT(A) has admitted such evidences for the sake of substantial justice to decide the issue on merit. The ld. CIT(A) has called remand report from the assessing officer. The content of the remand report submitted by the assessing officer are elaborated at page no. 22 to 25 in the order of CIT(A). In the remand report, the assessing officer has submitted that in view of the facts and circumstances, the matter may be decided on merits as the facts during the assessment was contrary to the appellate proceedings. Considering the above facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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