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2018 (11) TMI 123 - ITAT DELHIGain on sale of shares - LTCG or STCG - Reckoning of date of purchase - shares transferred to DEMAT account - correct timimg of trade - Held that:- Sole reliance placed by the AO and CIT(A) to draw adverse inference is with regard to the trade date and time of purchase of shares Sangotri Construction Ltd. from the Kolkata Stock Exchange. The broker has shown the trade timing at 13:19 hours. Simply based on this information of Kolkata Stock Exchange, it cannot be held that; firstly, the broker of the assessee had not trade in the purchase of shares or the shares were not available with the broker, when on the other hand, the broker has adduced ample evidence directly before the Department to prove not only the purchase but also the delivery of the shares to the assessee; secondly, the broker ‘Bubna Stock Broking Ltd.’ was neither examined or inquired by the Department despite matter was restored back to the file of the AO, especially when, in response to one letter written by ACIT, Kolkata, the broker has furnished the copy of ledger account, DEMAT statement and also confirmation regarding purchases and sale. This information received by the Department from the said broker have neither been rebutted nor any crossexamining has been done from the broker to ascertain the fact about the correct timing of trade AO has not made any specific enquiry from the broker to ascertain the correct time and date of purchase after the information from the stock exchange even after second round of proceedings. The assessee can prove from the documents which are made available from the broker and if there is any discrepancy at the end of the broker regarding timing of purchase then broker alone could have clarified. Thus, in view of material on record, we hold that the purchases made by the assessee on 11.06.2003 cannot be disbelieved and accordingly the transaction of share is treated as Long Term Capital Gain. - Decided in favour of assessee.
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