TaxTMI 
TaxTMI 
2009 (1) TMI 303
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....of account and the brokers have confirmed the transactions and hence such action of CIT(A) was purely on surmises, conjectures and hence not sustainable in the eye of law. 3. That further the learned CIT(A) misdirected himself in not having appreciated the fact duly confirmed by CSE and he himself that off-market transactions of shares is not illegal and in assessee's case sale of 14,000 shares out of 14,600 shares of M/s Questfin were sold by broker in self code through CSE and remaining 600 shares on off-market trade and hence the treatment of genuine gain as unexplained cash credit is whimsical and uncalled for. 4. That without prejudice to the above, the case laws relied on by the CIT(A) to substantiate his suspicion are distinguishable on facts and hence his action in disregarding the assessee's genuine claim duly supported by proper evidence is arbitrary, unwarranted and bad in law. 5. That as the order of the learned CIT(A) is arbitrary, capricious and bad in law, the same should be quashed and your appellant be given such relief(s) as prayed for. 6. That the appellant craves leave to add, amend and modify the above grounds at the lime of hearing of the appeal." ....
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....nbsp; 572042607 542445286 572043606 ----------------------------------------------------------------- 4. A979 19/09/2002 (S) 2003424 R-20020919/008 452188320  ....
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....Last but not the least the assessee has shown net profit of Rs. 16.16 crores. As against these the case of Revenue is that certain material information was not given in the contract note and columns in that respect were left blank. Copy of Form B was filed in CSE. For these reasons it is not verifiable as to whether the trades in question were done through the trading system of the exchange or not. The answer of the assessee to these deficiencies and irregularities is that he could not be held responsible for the same. It was not the assessee but the three Kolkata brokers who were members of the CSE...... The AO does not have support from the special auditors, CSE or any other quarter to that effect whereas the assessee has relied upon cogent evidence and material. We hold that the AO has acted upon grossly inadequate materials and his conclusions are in the realm of suspicion, conjectures and surmises......." 4.3 Further vide para 2.10, the learned Authorised Representative has contended that as far as the allegation that the de-mat account statement date of credit of shares of Questfin is 13th Aug., 2002 and the date of debit for the same shares is 9th March, 2005, it is submi....
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.... through proper channel, carried out at prevalent market rates and supported by proper bills and documents. In furtherance to the same, he also placed reliance on the decision of the Calcutta High Court in the case of CIT vs. Korlay Trading Co. Ltd. (1999) 152 CTR (Cal) 17 : (1998) 232 ITR 820 (Cal) where the jurisdictional High Court has held as under: "Once tl1e assessee has furnished the name of the company, number of shares purchased, date of sale, amount of purchase money, amount of sale money, etc. the assessee had discharged its initial burden and if the broker did not maintain any accounts, the transaction could not be doubted for no fault of the assessee. Once the assessee had discharged its initial burden, no investigation or proper steps had been taken by the ITO to bring on record the materials to controvert the claim of the assessee." 4.6 He also placed reliance on another case of the Tribunal, Kolkata Bench in ITA Nos. 1678 and 1679/Kol/2004 for asst. yr. 2001-02 in the case of Anup Kumar Jayaswal where the Kolkata Bench has held as under: "The, fact remains that at no point of time the assessee had an opportunity to interact with the share issuing company as....