TaxTMI 
TaxTMI 
2011 (7) TMI 1329
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....e additional DIT, Agra that the assessee had taken accommodation entries in respect of the purchase and sale of shares through M/s. Ayushi Stock Brokers (P) Ltd., Agra for Rs. 8,39,212/-, the Assessing Officer initiated the proceedings u/s. 147 by issuing notice u/s. 148 dated 28.03.2008 which was duly served, recording following reasons to believe : "On the basis of information received from Addl. DIT (Inv.), Agra vide his letter dated 20.03.2008 through Addl. CIT, Range-4, Agra's letter F.No. Addl. CIT/R-4/Agra/R- 4/Agra/Accommodation Entries /2007-08 dated 24.03.2008, that the assessee has obtained accommodation entries and received an amount of Rs. 8,39,212/- on F.Y. 2000-2001 through cheque No./Other No. 121983/111 by arranging/obtaining unreliable document etc. in the form of share application money/capital gains/gifts etc. during the F.Y. 2000-01 from Aayyushi Stock Broker Pvt. Ltd. Sanjay Place, Agra and the same is deposited in her bank account of ANZ Grindlays Bank. On the basis of information received from Addl. DIT(Inv.), Agra vide his letter dated 20.03.2008, I have reason to believe that the income earned as unexplained entry for Rs. 8,39,212/-....
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.... recorded name of the broker, name of the company, date of sale and sale amount. It is clearly mentioned that the assessee has taken entry in F.Y. 2000-01 and received an amount of Rs. 8,39,212/- through Cheque No.121983/111 from M/s. Aayushi Stock Brokers (P) Ltd. and the same was deposited in the bank account ANZ Grindlays Bank. This information specifically relates to the assessee and cannot be said to be vague information. The assessee did not dispute that amount received from these parties and deposited in the bank account belonging to the assessee. The reasons so recorded have rational connection to the formation of the belief. There is no allegation that the information contained in the reasons to believe does not belong to the assessee. The Assessing Officer has initiated the proceedings after verifying the facts and after receiving the specific information from Investigation Wing which is a valid piece of evidence for initiating proceedings u/s. 147. The reasons thus recorded cannot be said to invalid. Sufficiency of reasons cannot be looked into by the Court. The satisfaction was a bonafide satisfaction and has been exercised in a bonafide manner relating to a prudent per....
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....ormation received from the Investigation Wing. In this regard, reliance was placed on the decision of State Bank of Saurashtra vs. ITO, 24 ITD 97 (Ahd.) and that of Dudhanath Prasad Gupta vs. ITO 3 TTJ (Cal.) 309. It was contended that the reasons recorded by the Assessing Officer speaks of that M/s. Ayushi Stock Brokers (P) Ltd., Agra and M/s. Agarwal & Company Delhi have provided the accommodation entries to the assessee. It is not on what basis the Assessing Officer held so. There is no material referred in the reasons recorded for holding such a view. Thus, the reasons recorded are based on suspicion and surmises. The assessee's request to summon the brokers remained unattended by the Assessing Officer. In this regard reliance was placed on the following decisions : (i). United Electrical Company (P) Ltd. vs. CIT, 258 ITR 317 (Del.) (ii). CIT vs. Pradeep Kumar Gupta, 303 ITR 95 (Del.) (iii). CIT vs. Gulati Industrial Fabrication (P) Ltd., 217 CTR (Del.) 494. 6. It was also contended that from the reasons recorded one can say that the Assessing Officer has not applied his mind. He had borrowed satisfaction. Reliance was placed in this regard on the ....
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....ned as unexplained entry for Rs. 8,39,212/- has escaped assessment and liable to be taxed in F.Y. 2000-2001 relevant to A.Y. 2001-2002." 9. The notice u/s. 148 dated 28.03.2008 was duly served on the assessee. The assessment was completed u/s. 147 read with section 144 treating the sum of Rs. 8,39,212/- received by the assessee on the sale of shares as unexplained money deposited in the bank account of the assessee. The CIT(A) treated the reasons recorded to be inva;od and accordingly quashed the notice u/s. 148. We have gone through the provisions of section 147. This section gives jurisdiction to the Assessing Officer to assess or re-assess the income of the assessee. This section states as under : "147. If the AO has reason to believe that any income chargeable to tax has escaped assessment for any A.Y., he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the a.y. concer....
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....elieve that the assessee has escaped income chargeable to tax. b- The reasons to believe must be recorded by the assessing officer prior to the issuing of any notice to the assessee. c- Before making the assessment, the assessing officer must serve notice on the assessee requiring him to furnish the return in accordance with the provisions of section 148(1). 10. Thus, for applicability of section 147, the A.O. must have 'reason to believe'. This is the foundation of the proceedings to be initiated u/s 147. The word 'reason' in the phrase 'reason to believe' would mean cause or justification. If the assessing officer has a cause or justification to think or suppose that income had escaped assessment, it can be said to have a reason to have a reason to believe that such income had escaped assessment. The words 'reason to believe' cannot mean that the AO should have finally ascertained the facts by legal evidence. It only means that the AO forms a belief from the examination he makes and information that he receives. If he discovers or finds or satisfies prima-facie himself that the taxable income has escaped assessment, it would amount to saying that he has reaso....
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....after expiry of four years from the end of the relevant assessment year. Therefore the first requisite for exercising jurisdiction under section 147 is that there must be the reasons to believe in the case of the assessee. Recording of these reasons are also necessary before issuing any notice to the assessee in view of the provisions of section 148(2). 11. This is a fact that in this case no assessment was completed u/s. 143(3). Hon'ble Apex Court in the case of CIT vs. Rajesh Jhaveri Stock Brokers, 291 ITR 500 has settled the law that if the return is processed u/s. 143(1), the assessment can be reopened u/s. 147 and only one condition has to be satisfied as stated in the main provision of section 147. Since the return was processed u/s. 143(1) even though the assessee has shown capital gains earned on the sale of shares, but the Assessing Officer has not examined the nature of income. Therefore, it cannot be said that the Assessing Officer has duly accepted the profits shown by the assessee on the sale of shares. The transaction entered into by the assessee for sale of shares were not accepted by the Assessing Officer as he has not formed any view on these transactions. The A....
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....ons to believe, cannot be regarded to be a vague, irrational or arbitrary in our opinion in this case. The court cannot look into the sufficiency of reasons which weighed with the ITO in coming to the belief that the income escaped assessment. The court can certainly examine whether the reasons are relevant and have bearing in regard to the matter in which he is required to entertain a belief before issuing notice u/s. 148. The expression 'reason to believe' does not mean a purely subjective satisfaction on the part of the Assessing Officer. The belief must be held for good faith. It cannot merely be a pretence. This was so held in the case of S. Narayanappa and Brothers vs. CIT, 63 ITR 219. The Supreme Court has also settled the law in the case of Raymond Woollen Mills Ltd. vs. ITO 236 ITR 34 that in determining whether commencement of the re-assessment was valid, it is only to be seen whether there was prima facie some material on the basis of which the department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. The decision of Allahabad High Court in the case of Tin Manufacturing Co.(supra), in our opinion....
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.... also, we noted that the issue before the Third Member as appearing from the head notes does not relate to the validity of reasons to believe. The Third Member held that the sale consideration declared by the assessee is assessable as capital gains and not as income from undisclosed sources. This decision in our opinion will also not assist the assessee on the legality of the proceedings u/s. 147. In the case of Asha John Devinathan & Ors. Vs. Addl. CIT (supra), the High Court has also accepted that the assumption of the jurisdiction has to be established on the relevant facts. This decision will also not help the assessee, as in the case before us, the Assessing Officer was having the prima facie material to have the reasons to believe. The decision of Apex Court in the case of Johri Lal (HUF) vs. CIT (supra), Sheo Nath Singh vs. AAC (supra) and and Ganga Saran & Sons (P) Ltd. vs. ITO (supra) also, in our opinion, will not assist the assessee as in the case of the assessee, the Assessing Officer while recording the reasons has the relevant material to form the belief from which a person of ordinary prudence could form as held by us in earlier paragraph. In the case of State Bank o....
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.... the reasons recorded on the statement of the third party. Under these circumstances, in our opinion this decision is not applicable to the facts of the case before us. The decision of the Delhi High Court in the case of CIT vs. Gulati Industrial Fabrication (P) Ltd. (supra) also, in our opinion will not assist the assessee. In this case also, the assessment has been reopened on the basis of the statement of one Mr. R. Ultimately, the court held no substantial question of law arises. The decision of M.P. High Court in the case of Arjun Singh vs. DIT (supra) also, in our opinion, will not assist the assessee as in the case of the assessee, the reasons nowhere speaks of borrowed satisfaction on the part of the Assessing Officer. The decision of Mrs. Vineeta Jain vs. ITO (supra), Delhi Bench of ITAT is also not applicable as in that case, the Assessing Officer mentioned that the DDIT believed that the transaction of capital gain is bogus. That is not the case of the assessee. Even the tribunal has not considered the decision of Hon'ble Supreme court in the case of Purshottam Dass Bangur & another 224 ITR 362 (SC). The cases, as have been relied by the ld. AR which relate to Agra Bench....
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....corded in the case of the assessee. 14. We noted recently Delhi High court in the case of AGR Investment Ltd. vs. Addl. CIT, 333 ITR 146 dealt with the similar issue for which the Ld. AR was duly made aware of during the course of hearing. In this case, we noted that the Delhi High Court has taken the view that the reasons recorded by the Assessing Officer amply demonstrate that the income has escaped assessment and they held that there was application of mind on the part of the Assessing Officer. Delhi High Court did not quash the notice issued u/s. 148. While holding so, the Delhi High Court has discussed various decisions on this issue as under : "The questions that emerge for consideration are whether there has been application of mind or change of opinion, whether the objections have been properly dealt with and whether there is a mere suspicion or reason to believe. Regard being had to the aforesaid issues, we think it appropriate to refer to certain citations in the field. In Raymond Woollen Mills Ltd. v. ITO [1999] 236 ITR 34 (SC), while dealing with the validity of commencement of reassessment proceedings under section 147 of the Act, the apex court ha....
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....se conditions is not fulfilled, the notice issued by the Income-tax Officer would be without jurisdiction. The important words under section 147(a) are 'has reason to believe' and these words are stronger than the words 'is satisfied'. The belief entertained by the Income-tax Officer must not be arbitrary or irrational. It must be reasonable or in other words it must be based on reasons which are relevant and material. The court, of course, cannot investigate into the adequacy or sufficiency of the reasons which have weighed with the Income-tax Officer in coming to the belief, but the court can certainlyexamine whether the reasons are relevant and 'have a bearing on the matters in regard to which he is required to entertain the belief before he can issue notice under section 147(a). It there is no rational and intelligible nexus between the reasons and the belief, so that, on such reasons, no one properly instructed on facts and law could reasonably entertain the belief, the conclusion would be inescapable that the Income-tax Officer could not have reason to believe that any part of the income of the assessee had escaped assessment and such escapement was by rea....
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.... material to come to a different conclusion apart from just having second thoughts about the inferences drawn earlier. (emphasis added) In Sheo Narain ]aiswal v. ITO [1989J 176 I1R 352 (Patna), it was held that reassessment proceedings can be initiated under section 147(a) of the Act if the Income-tax Officer has reason to believe that there has been escapement of income and that the said income escaped assessment by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment for that period or year. Both conditions are conditions precedent for the assumption of jurisdiction under section 148 of the Act. In Phool Chand Bajrang Lal v. ITO [1993J 203 I1R 456, the apex court has held thus (page 477) : "From a combined review of the judgments of this court, it follows that an Income-tax Officer acquires jurisdiction to reopen an assessment under section 147(a) read with section 148 of the Income-tax Act, 1961, only if on the basis of specific, reliable and relevant information coming to his possession subsequently, he has reasons, which he must record, to believe that, by reason of ....
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....arma Products v. ITO (1999] 237 ITR 614 (MP), it was held as follows (page 616) : "It is also established that the notice issued under section 148 of .,'". the Act should follow the reasons recorded by the Income-tax Officer, for reopening of the assessment and such reasons must have a material bearing on the question of escapement of income by the assessee from assessment because of his failure or omission to disclose fully and truly all material facts. Whether such reasons are sufficient or not, is not a matter to be decided by the court. But the existence of the belief is subject to scrutiny if the assessee shows circumstances that there was no material before the Income-tax Officer to believe that the income had escaped assessment." (emphasis added) In H. A. Nanji and Co. v. ITO [1979] 120 ITR 593 (Cal), it has been held that at the time of issue of notice of the reassessment, it is not incumbent on the Income-tax Officer to come to a finding that income has escaped assessment by reason of the omission or failure of the assessee to disclose fully and truly all material facts necessary for assessment. It has been further held that the belief which the Incom....
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....guessing for the reasons. Reasons provide the link between conclusion and evidence. The reasons recorded must be based on evidence. The Assessing Officer, in the event of challenge to the reasons, must be able to justify the same based on material available on record. He must disclose in the reasons as to which fact or material was, not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish the vital link between the reasons and evidence. That vital link is the safeguard against arbitrary reopening of the concluded assessment." (underlining is ours) In Asst. CIT v. Rajesh Jhaveri Stock Brokers P. Ltd. [2007] 291 ITR 500 (SC), it has been ruled out(page 511) : "Section 147 authorises and permits the Assessing Officer to assess or, reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. The word 'reason' in the phrase 'reason to believe' would mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that an income had escap....
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....nder section 148 in respect of cases pertaining to the relevant ward. These three sentences are followed by the following sentence, which is the concluding portion of the so-called reasons : "Thus, I have sufficient information in my possession to issue notice under section 148 in the case of M/s. SFIL Stock Broking Ltd. on the basis of reasons recorded as above.' From the above, it is clear that the Assessing Officer referred to the information and the two directions as 'reasons' on the basis of which he was proceeding to issue notice under section 148. We are afraid that these cannot be the reasons for proceeding under section 147/148 of the said Act. The first part is only an information and the second and the third part of the beginning paragraph of the socalled reasons are mere directions. From the so-called reasons, it is not at all discernible as to whether the Assessing Officer had applied his mind to the information and independently arrived at a belief that, on the basis of the material which he had before him, income had escaped assessment. Consequently, we find that the Tribunal has arrived at the correction on facts. The law is well settled. There is ....
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.... to apply. As is manifest from the perusal of the supply of reasons and the order of rejection of objection, the names of the companies were available with the authority. Their existence is not disputed. What is mentioned is that these companies were used as conduits. In that view of the matter, the principle laid down in CIT v. Lovely Exports (P) Ltd. (2009) 319 ITR (St) 5 (SC) gets squarely attracted. The same has not been referred to while passing the order of rejection. The assessee in his objections had clearly stated that the companies had bank accounts and payments were made to the assessee-company through banking channel. The identity of the companies was not disputed. Under these circumstances, it would not be appropriate to require the assessee to go through the entire gamut of proceedings. It is totally unwarranted." The present factual canvas has to be scrutinized on the touchstone of the aforesaid enunciation of law. It is worth noting that the learned counsel for the petitioner has submitted with immense vehemence that the petitioner had entered into correspondence to have the documents but the Assessing Officer treated them as objections and made a communica....
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....nies with which it had entered into transactions and the Assessing Officer was made aware of the situation and further the reason recorded does not indicate application of mind. That apart, the existence of the companies was not disputed and the companies had bank accounts and payments were made to the assessee-company through the banking channel. Regard being had to the aforesaid fact situation, the court had interfered. Thus, the said decision is also distinguishable on the factual score. 15. In the case of Brij Mohan Agarwal vs. ACIT, 268 ITR 400 (All.) as relied on by ld. DR we noted that hon'ble high court has held as under:- "All that is required at the stage of issuing of notice under section 148 of the Income-tax Act, 1961, is that the belief of the Income-tax Officer must be that of an honest and reasonable person based upon reasonable grounds and not on mere suspicion, gossip or rumours. The assessee had purchased some shares in a company during the financial year 1999 and shown the purchase in its returns. During the assessment year 2001-02, the shares were sold. The assessee claimed that the profits made were long-term capital gains assessable at th....
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....x Officer, without any further investigation, could have formed the opinion that there was reason to believe that income of the respondent chargeable to tax had escaped assessment. The notice under section 147(b) was valid." 17. In the case of Rattan Gupta vs. Union of India and Others, 234 ITR 220 (Del), hon'ble high court has held as under : "Held, dismissing the writ petition, that the reasons for the initiation of reassessment proceedings were the receipt by the Assessing Officer of letter dated February 17, 1993, from the Assistant Commissioner of Income-tax, Investigation Circle 14(1), New Delhi, stating that the assessee was earning income in benami names and money totaling Rs. 15 crores approximately in the form of bank drafts purchased in smaller towns of the country by four sikkim companies floated by the Dalmia group was received in the office of the assessee and further, in search and seizure operations conducted on March 15, 1990, certain cash and jewellery was found but it was not seized whereas books of account and other documents were seized. A perusal of the record showed that before issue of the impugned notice, the Assessing Officer had obtained a cop....
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....2 relating to the deletion of addition of Rs. 8,39,212/- on merits, we noted that the issue on merits is covered by the decision of Third Member dated 09.02.2010 in the case of Shri Baijnath Agarwal vs. ACIT, 133 TTJ 129 (T.M.)(Agra), whereby similar addition in the identical facts and circumstances has been deleted observing as under : "7. I have carefully considered the rival submissions alongwith the orders of the Tax Authorities below as well as the order of my ld. colleague Members. I have gone through the decision of Shri Ashok Kumar Lavania in ITA No.112/Agr./2004 which was decided by the Bench constituting of same ld. J.M. and ld. A.M. vis-à-vis the facts of the case of the assessee. In that case also the transaction of sales has not been accepted by the A.O. as he doubted the sale prices and also relied on the statement of Shri Ashok Gupta, Director of M/s. JRD Stock Brokers Pvt. Ltd. who stated that as a matter of fact there was no actual purchase and sale of shares as was reflected in the contract notes issued by M/s. JRD Stock Brokers Pvt. Ltd. to the beneficiaries. In that case the assessee claimed Long Term Capital Gain of Rs. 25,14,770/- and claimed e....
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....r letters; iii) contract notes; iv) duly transferred share certificates received from the companies; and v) affidavit. (11) There is no doubt, in such cases, the brokers become the witnesses of the department. The department has got statements of these brokers which are used against the assessee. Irrespective of the fact that the statements were recorded at the back of the assessee and that the assessee was or was not afforded opportunity for cross-examination, when overwhelming documentary evidences are produced by the assessee, the burden shifts on the Revenue to explain away them. Every time the statements cannot help the department. How the above mentioned evidences could be ignored ? The Revenue has to give reasons for rejecting them. These are important documents, some of them arise under the provisions of the Companies Act. The brokers were never confronted with the evidences produced by the assessee. The apparent has to be treated as a real unless proved otherwise. Long ago Hon'ble Supreme Court has laid this law while rendering the celebrated decision in the case of CIT Vs. Daulat Ram Rawatmal (1964) 53 ITR 574 (SC). The assessee h....
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....o relationship between the party from whom the assessee purchased the shares and the party to whom these were sold. The shares were delivered after its sale and the assessee did not remain in possession of those shares. 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 A.O. has failed to establish his case and to discharge the requisite burden cast on him. The Authorised Representative has filed the requisite quotation of 18th July, 1996 along with the requisite proof of transactions of 9000 shares along with transfer of share certificate. Therefore, in the given facts and circumstances of the case, the CIT(A) has correctly come to the conclusion that the assessee has dealt in these shares and these transactions cannot be held bogus. The deletion of addition of Rs. 4,99,062/- is confirmed." (13) The above decision clearly helps the case of the assessee. (14) Credence cannot be given to the statements of the persons who themselves admit and have dubious dealings as against the documentary evidences produced by the assessee. ....
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.... whom the shares were sold is the same i.e. M/s. Agarwal & Co. The identity of M/s. Agarwal & Co. has not been disputed in that case. In this case, the Revenue cannot be permitted to take a different view. The demand draft for the sale consideration was issued from the account of M/s Agarwal & Co , broker. The ld. A.M. has distinguished the decision of Ashok Kumar Lavania. On the basis of that, in Ashok Kumar Lavania's case purchase of the shares was not in dispute. While in fact in assessee's case the purchase of shares through direct allotment is also not in dispute. The ld. A.M. was also the party to that decision. I noted that in this case the A.O. has doubted the sale consideration because the share price has increased tremendously. I noted that in the case of Ashok Kumar Lavania also the assessee has purchased the share @ Rs. 4/- per share and sold @ Rs. 65/- to 84/- per share. In that case also the A.O. has not accepted the transaction but on the basis of the evidence the Tribunal has accepted the transaction to be genuine one as there was no corroborative evidence to support the statement of the broker. In this case, I noted that the statement of the broker was not recorded....
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.... value of the shares. In the case of the assessee, the assessee has sold the shares @ Rs. 106/- per share on 18.11.2000 i.e. nearer to the date of 16.11.2000. Under these facts, there cannot be any reason not to accept the value of the shares sold @ Rs. 106/- per share. The decision of coordinate bench is binding on this tribunal. The assessee is only a small shareholder of the company. He is not the director of the company or of the stock exchange. Under these circumstances how he can manipulate the prices is beyond one's comprehension. It is pertinent that the issue of abnormal increase in prices of the shares has come up for consideration before the ITAT, Agra Bench in the cases of Smt. Memo Devi (ITA No.396/Ag/2004 - reported as 7 DTR 158) wherein the Co-ordinate Bench observed as under :- "The assessee has no relation with the directors of the company and was in no way in the capacity to affect the market price of shares. The increase in share prices by more than 25 times too cannot be the basis to assume that the transaction was bogus. Abnormal fluctuation in share prices is a normal phenomena - the learned counsel for the assessee filed a chart showing low and high ....
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....er but the broker has deposited the cash in his account as per the revenue. I have also gone through the decision of Ashok Kumar Agarwal, ITA No.129/Agr/2004 on which the ld. AR has vehemently relied. In that case, I noted that this Bench vide order dated 03.04.2006 in respect of the cash deposited in the account of the broker has held as under :-_ "As regards the objections of the ld. CIT(A), we agree with the arguments forwarded by ld. Counsel for the assessee that the assessee had made the purchases and sale of shares through account payee cheque or draft. If the broker had sold the shares in cash and deposited the same in his i.e. in the bank account of broker concern, is beyond the control of the assessee. Also as regards the second objection of the ld. CIT(A) that no. of persons have allegedly done such transactions during the same period. We are of the view that the ld. CIT(A) has not provided the details of such no. of persons and also have not linked transactions of such no. of persons to the transactions of the assessee from which it could be proved that the transactions carried out by the assessee are a sham transaction. The ld. CIT(A) has referred to the name o....
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.....O. has failed to establish that in lieu of the aforesaid sale proceeds, the assessee has surreptitiously introduced his unaccounted money in the bank account. After having perused the entire material that is available on record, there is no averment, much less any evidence, with the Revenue in this regard. While there may be enough grounds with the AO to carry out the impugned verification exercise to test the efficacy of the transactions resulting in long term material gains in the hand of the assessee but there is no cogent material or evidence to indicate that the impugned sale proceeds reflected unaccounted income of the assessee." 15. It was the duty of the A.O. to bring on record sufficient evidences and material to prove that the documents filed by the assessee were bogus, false or fabricated and the long term capital gain shown by him was actually his income from undisclosed sources. The only material to support such conclusion of the lower authorities is either the findings of the DDI in general investigations or the observation that the assessee could not prove the transaction to be genuine one. This is the settled law in view of the decision of the Hon'ble Supr....
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....dence of a character which would either directly prove the fact of bogusness or establish circumstances unerringly and reasonably raising an inference to that effect." 16. I have also gone through various other decisions on similar issue under the similar facts and I noted that this Tribunal had consistently accepted the genuineness of the share transaction. Those cases are as under :- ITO vs. Sunita Gupta - ITA No.881/Del/2004 (Delhi Bench 'SMC') Dilip Gargh vs. ITO - ITA No.470/Agr/2004 Gopal Prasad Agarwal vs. ACIT - ITA No.128/Agr/2004 17. I also noted that the case of the assessee is duly covered by the decision of the Third Member in the case of Smt. Sunita Oberoi vs. ITO (Agra) (TM) ITA No.273/Agr/2004 A.Y. 1995-96 dated 07.08.2009, 30 DTR (Agra) (TM) (Trib.) 474 in which on difference of opinion on the question under the similar circumstances whether the assessee can be said to have discharged her burden to prove the genuineness of the transaction in shares of M/s. Prasidh Exports Limited and M/s. K.L.P. Finance Limited or that the burden had shifted on the Revenue that can be held to have not discharged by them, the decision to ....
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....ceived on account of the differential due to dispute withheld by the brokers cannot be discarded without any cogent reasons. The explanation has consistently been given by the assessee despite this nothing has been led by the Department to discard it. The statements of the witness heavily relied upon the Department have already been seen as having been based on no evidence and have already been discarded by Co-ordinate Benches and even they do not disprove the explanation of the assessee pertaining to the dispute with the broker. In yet another case of ITO vs. Rajiv Aggarwala (2004) 89 TTJ (Del) 1095, Delhi Tribunal held in the context of statements given by Shri Shankar Hari Maheshwari and Shri Praveen Mittal considered the statements recorded by the Dy. Director of IT (Inv.) of Mr. Shanklar Hari Maheshwari and Mr. Praveen Mittal; the assessee did not furnish the address of the said company; the fact that the assessee could not adduce evidence in support of his claim of purchase of shares; that the assessee failed to adduce any evidence regarding transfer of shares in his name; and that the assessee has failed to even furnish the name and address of the person to whom the....