AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (11) TMI 547
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.... 2007-08 for the claim of the Appellant that the alleged sale of Tripex Overseas shares were considered in AY 2007-08. 1.1. The Ld CIT-(A) failed to appreciate the fact that the Ld AO erred in making an addition on account of alleged sale of shares of Tripex Overseas Ltd being presumed by the Ld AO, even after there was factual indication in the Assessment Order Para-7.2 at Page-5 in Table-C at last column "Gross Sale of Subject Shares being amount credited in Bank Account" as NIL, which evidenced that there was neither receipt nor credit of the alleged sale in this Assessment Year. 1.2. The Ld CIT-(A) failed to appreciate the fact that the Ld AO erred in making an addition on account of alleged sale of shares of Tripex Overseas Ltd being presumed by the Ld AO, even after there was factual indication in the Assessment Order Para-7.2 at Page-5 in Table-C at column "Nos. of Shares" is Blank, which evidenced that there was no such alleged sale in this Assessment Year. 1.3. The Ld CIT-(A) failed to appreciate the fact that the Ld AO has made the addition on account of the alleged sale of shares on the basis of it being "highly possible", which indicates presumptions and assumptio....
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....ent case is an individual and engaged in the business of manufacturing & sale of food flavors. It is the 3rd round of appeal before us. The ITAT on the earlier occasion has restored the issue to the file of the AO in MA No. 212 & 213/MUM/2015 arising out of ITS Nos. 5539/MUM/2012 & 7526/MUM/2013 vide order dated 16-03-2016 with the direction as detailed under: 3. We have considered the rival contentions and carefully gone through the order of the Tribunal as well as the other materials placed before us. It appears that Tripex Overseas Ltd. shares were purchased in A.Y 2006-07 and were sold in A.Y 2007-08, therefore, sale proceeds of the shares should be brought to tax net in A.Y 2007-08 and not in A.Y 2001-02. To rectify the mistake apparent from the record, we direct the AO to verify the order passed by him for A.Y 2007-08 to ensure that there is an addition on account of sale of shares of Tripex Overseas Ltd. and if he finds that the sale proceeds of shares of Tripex Overseas Ltd. had already been taxed in A.Y 2007-08, the same should not be again added in A.Y 2001-02 under consideration. We direct accordingly. 4. In the result, the Miscellaneous application filed by the as....
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....ears, the claim of assessee has to be verified with the details of specific shares. Such findings of the facts are in no way contrary to the directions of ITAT. ITAT, as a highest fact findings authority had directed the AO to verify the facts and then take a decision. The failure on the part of the assessee to submit any details to AO and the submission of similar arguments during the appellate proceedings is against the overall purport of ITAT order. Since the entire issue is related to verifying the duplicity of sale of same shares being brought to tax in two years, the same has to be verified before reaching a final conclusion. In the absence of details filed by the assessee before the AO as well as in the appeal proceedings, it is to be concluded that there is no fault in the order of AO and the appeal of assesse is, therefore, not valid and hence dismissed. 6. Being aggrieved by the order of the Ld. CIT (A), the assessee is in appeal before us. 7. The Ld. AR before us filed a paper book containing pages 1 to 41 and submitted that the assessee never had the shares of TOL in the year under consideration. Therefore, there is no question of selling such shares in the year under....
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..... AR for the assessee. 9.2 We also find that the authorities below were in possession of the information about the brokers involved in the sale and purchase of shares but none of them has taken any confirmation from them. 9.3 We also note that there was no ambiguity in the direction of the ITAT as discussed above to verify the purchase and sale of shares of TOL but the AO in his assessment order has held that the assessee has not declared the sale of shares of M/s ATN International Ltd. resulting bogus long-term capital gain of 3,64,422.00 though there was no such direction in the order of the ITAT. 9.4 Therefore, we are of the view that the authorities below have exceeded the direction issued by the ITAT which is unwanted. In this regard we draw guidance and support from judgment of Hon'ble Supreme Court in case Union of India and others vs. Kamlakshi Finance Corporation Ltd reported in AIR 1992 SC 711 where it was held as under "The High Court has, in our view, rightly criticized this conduct of the Asstt. Collectors and the harassment to the assessee caused by the failure of these officers to give effect to the orders of the authorities higher to them in the appellate hiera....