2010 (8) TMI 1008

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....learned taxing authority below have erred in taxing the amount of ₹ 14,06,248/- assessable under the head "Income from other sources" in place of that assessable under the head "Capital Gain" as claimed by the appellant. The action of learned taxing authority below be held as erroneous, unjustified & contrary to facts prevailing in the case & scheme & provisions of law. The said income of ₹ 14,06,248/- be held as assessable under the head "Capital Gains" arising on transfer of shares & be directed to be taxed accordingly. 2. On facts & circumstances prevailing in the case & as per provisions of law, it be held that the learned taxing authority below has erred in taxing a sum of ₹ 28,528/- u/s 69C of the Act on surmises & ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....said gains constitutes 'short term capital gains' and in the process, he considered the date of transfer of impugned share to the Dmat account of the assessee as the date for counting the period of holding of the shares. Otherwise, the assessee argues for reversal of the orders of the revenue and pray for grant of exemption u/s 10(38) in respect of the impugned capital gains. Revenue contends for taxation of the said gains under the head 'income from other sources'. 21. The parties have advanced their common arguments in respect of the above referred twelve appeals of six each belonging to assessee and the revenue. On consideration of the arguments and our discussion, we upheld the invalidity of the contract notes and the unsupported entri....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....rt of the paper book filed before us. In any case, we have given our finding on the credibility of these contracts notes and the same is against the assessee, have also examined the follow up action consequent to the said contract note and found the shares were neither transferred to the assessee nor the payments of consideration was made by the assessee to the Broker in a reasonable time period. There is no evidence to substantiate that there is some understanding between the broker and the assessee for such inaction to give effect to the said contract notes. That means these contract notes are as good as 'dead' ones. In any case, now the assessee has decided to resort to the new line of argument, i.e. 'off market' transaction. In effect, ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ound to be false by the AO through his direct enquiries with the Calcutta Exchange. A.O gathered relevant details from the Exchange to demonstrate that the purchase transaction was not a recorded transaction in the Calcutta stock exchange. This is supported by the fact that the shares are neither transferred to the assessee nor the relevant payments are made by the assessee to the broker immediately after placing the order for purchase of shares and till the expiry of 18 months. Thus, it is an undisputed fact that the assessee received sale consideration and the same is entered the bank accounts of the assessees and the same is received incidental to the investment in the shares, capital assets. Therefore, income if any generated out the sa....