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TMI Blog2024 (1) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... nto by the assessee in respect of purchase and sale of shares of Shreenath Commercial and Finance Ltd., as colourable device, is available. The assessee on the contrary has produced ledger accounts, purchase bills, sale bills and even bank account statement in respect of the transaction. It was very much open to the AO to invoke his powers u/s. 133(6) of the Act or to call for information from the stock brokers. This has not been done. AO has blindly relied upon the statement recorded from one stock broker who has given names of various companies and Shreenath Commercial and Finance Ltd., is also one of them. The shares purchased by the assessee and sold by the assessee are on Bombay Stock Exchange. STT has also been clearly paid on both the transactions. These are not off-line transactions. AO has also not considered the fact that the assessee had to sell the shares of Maa Tarini Industries Ltd., to protect itself from the financial loss caused on account of loss incurred in the transactions of shares of Shreenath Commercial and Finance Ltd. This being so, respectfully following the principles laid down in the case of Smt. Bimala Devi Singhania ( 2023 (10) TMI 1351 - ORISSA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e submission that the assessee had also requested an opportunity to cross examine Shri Sanjay Vora and the same was denied by the Assessing Officer on the ground that the share brokers, entry operators, promoters of the company, exit providers, etc had appeared before the I.T. authorities and their sworn statements had been recorded on oath. It was the submission that the Assessing Officer denied the cross examination on the ground that these persons had not retracted the statement before any other judicial authorities and consequently not lost their legal sanctity. It was the further submission that the Assessing Officer further went on to hold that the onus was on the assessee to prove the bonafide of the transaction and that the assessee cannot shift his burden on the department by asking for the opportunity to cross examine the 52 witness who have confirmed that the transactions are not genuine. It was the submission that the assessee has produced ledger accounts of the shares of purchase and sale during the impugned assessment year. It was the submission that the shares were purchased during the assessment year 2013-14 and they were sold during the assessment year 2014-15. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , vide order dated 13.09.2023, framed the substantial questions of law to the following effect:- I) Whether the learned Tribunal has rightly accepted the claim of the assessee as per law regarding exemption under Section 10 (38) with respect to alleged income under the head Long Term Capital Gain on sale of shares of penny stock by ignoring the admission by their group before the Income Tax Authority that complete tax would be paid on the bogus LTCG claimed by the group subsequent to survey operation under Section 133A? II) Whether the learned Tribunal has rightly dismissed the appeal of the revenue with the observation that as the sale of shares were effected through recognized stock exchange and STT had been paid at the time of transfer, therefore it cannot be held as bogus? 7. Before delving into the issues in question, the provisions contained under Section 10 (38) of the Income Tax Act, 1961 are extracted hereunder:- Any income arising from the transfer of a long term capital asset, being an equity share in a company or a unit of an equity oriented fund [or a unit of a business trust] where- (a) the transaction of sale of such equity share or unit is entere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the statement that tax will be paid on the claim made under Section 10 (38) of the Income Tax Act, 1961 in filing the IT return for the Assessment Year 2013-14 and to be disclosed as income from other source. But the said statement, being without any incriminating evidence against the respondent-assessee, cannot be ipso facto decided against the respondent-assessee. The present income tax appeal filed at the instance of the revenue involved no substantial question of law, as both the appellate authorities have decided on the basis of evidence and documents produced by the respondent- assessee and the revenue and, as such, on the basis of the facts, both the authorities have come to a conclusion that the respondent-assessee is entitled to the benefit under Section 10 (38) of the Income Tax Act, 1961 and held that the appellant-revenue had failed to bring any evidence in rebuttal nor was it proved that the documents produced were false, fabricated or fictitious, hence, the findings, as recorded by the appellate authorities, that the transaction of purchase and sale of shares could not be treated as non-genuine, were essentially in the realm of appreciation of evidence and, as such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l questions of law have been framed vide order dated 13.09.2023, the same are not required to be answered. As such, CIT (A) and Income Tax Appellate Tribunal, being the fact finding courts, relying upon the evidences Page 23 of 23 available on record, having passed the orders impugned, there is no necessity of answering the substantial questions of law framed for adjudication. 15. Thus, both the appeals, being devoid of merits, are hereby dismissed. However, there shall be no order as to costs. 4. It was the prayer that the addition as made by the Assessing Officer and as confirmed by the ld CIT(A) is liable to be deleted. 5. In reply, ld Sr DR submitted that the assessee is not a regular dealer in share transactions. It was the submission that the assessee did produce the assessee s brokers for examination. It was the submission that Shri Sanjay Vora was a broker/entry operator and he has confirmed before the DDIT (Investigation) that he has done bogus transaction in the shares of Shreenath Commercial and Finance ltd. It was the submission that no proof of purchase and sale of shares or the bank account have been produced. He vehemently supported the order of the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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