2013 (10) TMI 1037

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....any. The assessee sold the shares on 8th August, 1994 at a loss of Rs.4,50,04,414/- to one of its group companies. The aforesaid loss was sought to be set off against the long term capital gains earned by the assessee company, which was disallowed by the Assessing Officer. Aggrieved by the order of the Assessing Officer, the assessee went up in appeal. The CIT (Appeal) held that the purchase of the shares was genuine, but the sale was a colourable transaction considering the fact that the assessee purchased the selfsame scrip after some time and the sale to the group company was financed by the assessee himself. The CIT (Appeal), in the circumstances, upheld the order of the Assessing Officer. The assessee preferred an appeal to the Inco....

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....ce was Rs.18.99 Crore, whereas the financing was restricted to Rs.2.60 Crore on interest on commercial rates; For the aforesaid reasons, the Appellate Tribunal was of the opinion that the transaction of both purchase and sale was a genuine transaction. Aggrieved by the order of the learned Tribunal, the department has come up in appeal. The following grounds have been advanced. "I. That the findings of the learned I.T.A.T. that the transactions of the sale of shares between the assessee company and M/s. Kejriwal & Co. on one hand and those between M/s. Kejriwal & Co. and Jai Commercial Co. Ltd. on the other were genuine were based on no evidence or partly relevant or partly irrelevant evidence and are otherwise perverse and a....

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....ct, suspicion can never take the place of proof. What were the individual facts and circumstances in the case of other investors indicated in the chart appearing at Page-51 of the paper book are not known to us. In so far as the assessee is concerned, the facts and circumstances are before us which we have also tabulated. The finding arrived at by the Tribunal indicated above was not even alleged by Mr. Dutta to have not been based on evidence. In the teeth of the aforesaid findings made by the Tribunal on the basis of evidence, it is difficult, if not impossible, to hold that the transaction of buying and selling of shares of Hindustan Development Corporation Ltd. was a colourable transaction or was resorted to with any ulterior motive of ....