TaxTMI 
TaxTMI 
2013 (1) TMI 572
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....the Hon'ble ITAT was legally correct in confirming the findings of learned CIT (A) regarding the deletion of the addition of Rs.19,51,038/- made by the A.O. u/s 68 of IT Act, 1961 and assess the income under the head LTCG as shown by the assessee ignoring the common modus operandi of providing fictitious accommodation entries to persons in the garb of share transactions, adopted by the M/s. M.K.M. Finsec Pvt. Ltd.? 2.Whether the Hon'ble ITAT was legally correct in confirming the deletion the addition made by the A.O. u/s 68 of IT Act ignoring the legal aspect that the assessee could not discharge his onus of providing the genuineness of the share transaction?" Briefly stated the facts giving rise to the present appeal are as follows:-....
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....he shares in question. We have given our thoughtful consideration to the plea and we find that the CIT(Appeals) while deleting the addition has held as follows. "2.5. I have considered the facts of the case, assessment record, submission of AR and position of law, in my opinion, appellant deserves to succeed. At the time of making assessment, the AO on the basis that the appellant could not furnish any evidence to prove that the shares were actually transferred from his name and there was no actual sale of shares and the money allegedly received as sale consideration of shares was in fact appellant's own money which was routed through the help of some unscrupulous person and hence made an addition of Rs.19,51,038/- as income from undi....
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....ellant were transferred were also filed. Thus the objection of the AO that the detail of purchase and sale of shares is not made available is not correct. viii) The sale consideration of these shares was received through account payee Demand Drafts duly ascertained by the AO independently to have been issued from the bank account of the broker. ix) During the course of assessment proceedings the following evidences were brought on record:- a) Copy of share broker bill. b) Copy of the Contract note. c) Copy of Demat account statement with Stock Holding Corporation of India Ltd. Which clearly shows that the shares were transferred from the name of appellant after its sale. d) Copy of ledger account of the appellant in the bo....
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....rofit was not from the sale of shares. The AO had failed to establish his case and to discharge the requisite burden cast on him. xi) In this case as rightly pointed out by the AR's, there is no evidence on record as referred in assessment order, to prove that the proceeds received against sale of shares represent appellant's undisclosed income. Hon'ble Apex Court in the case of Kishan Chand Chella Ram vs CIT rep[orted in 125 ITR 713 has held "that the burden is on the Department to prove that the money belongs to the assessee by bringing proper evidence on record and the assessee could not be excepted to call the concerned person in evidence to help the Department to discharge the burden that lay upon it". Similar view has been expresse....
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....he explanation or rebut it by putting to the assessee some information or evidence which it has in its possession. The department can not be merely rejecting unreasonably a good explanation, convert good proof into no proof'. The AO has based his conclusion on unfounded presumption and surmises. This also can not be approved. Reliance is placed to the Hon'ble Supreme Court decision in the case of Umacharan Shaw & Bros. vs. CIT 37 ITR 271. (2.7) Thus in view of above facts and circumstances of the case it is well established by the appellant regarding genuineness of share transaction and he has sufficiently discharged the onus cast upon him. AO's action is not well founded in position of law in adding entire amount of sale of shares....