TaxTMI 
TaxTMI 
2012 (5) TMI 311
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.... taken up then appeal of the assessee may be treated as infructuous. However, the learned CIT-Departmental Representative has stated that since the Department is against the order passed under s. 154 and assessee has already filed appeal against the original order of learned CIT(A), dt. 10th Feb., 2009, therefore, appeal of the assessee may be taken first and if the appeal of the assessee is taken, then appeal of the Department may be treated as infructuous as the issues involved are the same. We will take the appeal of the assessee. 4. The learned counsel of the assessee stated that assessee purchased shares of M/s Elite Capital and Management Service (P) Ltd. through broker M/s Saraf Trading and Portfolio (P) Ltd. on 10th April, 2000. Total shares purchased are 61,700 for Rs. 92,550. These shares were shown in the balance sheet on 31st March, 2001. Balance sheet of the assessee has been accepted by the AO. These shares were got transferred to the Demat account. Attention of the Bench was drawn at pp. 228 to 230 of the paper book where purchase of shares and certificate of Demat account are placed. Thereafter the assessee sold 20,000 shares vide bill dt. 20th Aug., 2001 at Rs. ....
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....008) 16 DTR (Jd)(Trib) 114, ITO vs. Smt. Kusumlata (2006) 105 TTJ (Jd) 265, 49 DTR 149 (Raj) (sic) and a decision of Jaipur Bench, copies of all these decisions are placed on record. It was further submitted by learned Authorised Representative that AO has made an addition on the basis of statement of the broker which was given in a routine manner and no where the name of the assessee is appearing in the statement as this fact is clearly borne out from the order of AO that the name of the assessee was not mentioned by the broker. The broker may be issuing bogus accommodation bills in certain cases and this statement cannot be applied in every case. There may be genuine transactions and assessee has made genuine transaction. Assessee has purchased shares through a different stock broker. The company of which the shares have been purchased is a listed company and the shares have been transferred to Demat account. Therefore, the statement cannot be generalized in every case. 9. On the other hand, the learned CIT-Departmental Representative invited the attention of the Bench at p. 3 of order of AO where confessional statement of Shri Mahesh Batra is discussed. The statement o....
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....details, it is clearly seen that assessee purchased shares in earlier year. They were shown in the balance sheet which was filed along with the return of income. The payments were made through books of account which has not been doubted. The shares belong to a listed company which is also not in doubt. The company itself has issued certificate that all these shares have been demated, copy of the same is placed on record. Once the purchase of shares is not doubted, then in our considered view, the sale of same shares should not have been doubted. If assessee has invested his own money under the garb of fictitious sale of shares then where the actual shares purchased by assessee which were duly demated have gone. This fact has not been considered either by AO or by learned CIT(A) who originally rejected the claim of the assessee. When this fact was brought to the notice of learned CIT(A) by filing miscellaneous application under s. 154 that the assessee has purchased the shares of listed company and the AO has not made any enquiry, rather he has noted wrong fact, then learned CIT(A) realized this mistake and rectified his order under s. 154 by allowing the claim of assessee. Only on ....
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.... party to whom these shares were sold. The shares were delivered after its sale and the assessee did not remain in possession of those shares. 14. From the above facts, it is established that the assessee acquired the shares to earn profit. There is no evidence except speculation that this profit is not from the sale of shares. The AO has failed to establish his case and to discharge the requisite burden that lay upon him. Accordingly the issue was decided in favour of the assessee. 15. Similar facts are involved in the present case. In the case in hand, the shares were also purchased more than one year before the date of sale. The assessee is not possessing those shares and they have been transferred in the name of the buyer through Demat account. The payment had been received through proper banking channel. There is no record that the assessee had paid his own money in cash for issuing cheque in his name. As stated above, the purchase is not in doubt. Therefore, in our considered view, assessee has discharged his onus by filing all details whereas the AO has failed to discharge his onus to prove that assessee had invested his own money except relying on statem....
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....efore him which were not examined by making enquiry from the respective party. In view of these facts and circumstances, we allow the appeal of the assessee by deleting the impugned addition made and direct the AO to accept the capital gain shown on account of sale of shares. 17. The appeal of the assessee is allowed and the appeal of the Department is dismissed as same has become infructuous in nature. 18. Now we will take up remaining appeal by assessee for asst. yr. 2006-07 in ITA No. 201/Jd/2009. 19. Ground No. 3 which is against initiation of proceedings under s. 132 and thereafter passing assessment under s. 153A was not pressed. The same is dismissed as not pressed. 20. Ground No. 4 is against charging interest under ss. 234A, 234B and 234C is consequential in nature. The will allow consequential relief to the assessee, if any. 21. Ground No. 1 is against confirming addition of Rs. 2,95,241 out of total addition of Rs. 4,09,007. 22. A search and seizure operation was conducted on the assessee on 23rd Jan., 2006. Statement of the assessee was also recorded. Thereafter return was filed and notice was issued for comple....