TMI Blog2010 (12) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... 's appeal is against the Order of the CIT(A)-XVI, Mumbai dated 13-8-2009. The assessee filed an appeal with a delay of 6 days and placed an affidavit explaining the delay due to leave of Articled Clerk as well as marriage in the Authorised Representative's family. Considering the smallness of the delay involved and the reasons explained, we are satisfied that it is a fit case for condonation of delay and accordingly, the delay is condoned. Appeal admitted. 2. The assessee raised detailed grounds of appeal and subsequently filed revised grounds of appeal (abridged) which are as under: 1. "The learned CIT(A) erred in upholding the order of Assessing Officer treating the long term capital gain declared by the assessee as short term capital gain of Rs.15,50,048/-, on sale of shares and not allowing the exemption u/s. 54EC of the Act. 2. The learned CIT(A) erred in upholding the addition of Rs.8138/- on account of alleged commission paid. 3. The learned CIT(A) erred in not considering the additional ground raised by the assessee vide letter dated 19-6-2009 i.e., no opportunity provided to the assessee to cross examine the stock broker Mr. Mukesh Chokshi, thereby principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of accounts on the total sale price of Rs.16.27 lakhs and an amount of Rs.8138/- was also added to the assessee's income as unexplained expenditure. 4. It was contested before the CIT(A) that Assessing Officer has not given any opportunity to cross-examine Mr. Mukesh chokshi and also further contended that assessee has furnished the following documents in support of assessee's contention that the shares and purchase in 2000-2001 itself. a) Statement of total income of the assessee. b) Purchase bills of the Gold Star Finvest P. Ltd. c) Letter dt.30-6-2000 from Rashel Agrotech Ltd. confirming the transfer of share certificates along with the copy of share certificate. d) Sale bills of the Gold Star Finvest P. Ltd. (speculation) e) Ledger copy of Gold Star Finvest P. Ltd. for AY 2000-01 f) Sale bills of Goldstar Finvest Pvt. Ltd. 4.1. It is also contended that the said Mukesh Chokshi in his statement under section 131 recorded on 28-10-2006 has given a categorical finding/statement that the assessee's transactions are genuine and since the broker has accepted the transaction as genuine the payment made by way of cheques and entries relating to purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was a fictitious transaction entered for the creation of capital and no deduction for LTCG can be made available to the assessee. This will be more of an unexplained receipt of money in the hand of the appellant. Hence, the A.O. has rightly added the amount back and the action of the A.O. in making this addition is confirmed and treating it as STCG. The appeal of the assessee stands dismissed." 5. Referring to the Order of the Assessing Officer/CIT(A) and also the paper book filed in this regard, the learned Counsel for the assessee explained that assessee has purchased the shares through the stock broker who has issued purchase invoices and subsequently the shares were also transferred in the name of the assessee on 30-6- 2000 itself and further the assessee has shown these transaction of purchase of shares in the balance sheet filed for the assessment year 2001-2002 in August, 2001 and these shares were sold in December, 2001 on which the assessee has earned long term capital gain. He then referred to the statement recorded by the Assessing Officer from Mr. Mukesh Chokshi. particularly question No.4 which is also extracted in the assessment order to submit that the said b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the assessee also. He further referred to the next question to Mukesh Chokshi to state that another broker Mr. T.C. Kothari a jobber was also involved in arranging transactions and helping assessee. In view of this he submitted as the date of purchase is not proved the Assessing Officer was right in treating the transaction as bogus transaction. 7. We have considered the submissions of the rival parties and examined the record. The case relied upon by the learned Counsel are not directly applicable to the facts of the case as in those cases the sale proceeds are treated as undisclosed income denying the entire transaction as such, whereas, in the present case, the Assessing Officer did not treat the sale of shares as bogus. He has only examined the purchase of shares and doubted the date of purchase. But in the computation he has given benefit to the same cost of purchase of shares and taxed the long term capital gain offered as short term capital gain only. As far as the date of purchase is concerned, the evidence on record indicate that the assessee had indeed earned speculation profit by sale of APTECH shares which the Assessing Officer has not doubted. Further the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuine payments." 8. This statement was relied upon by the Assessing Officer to state that the purchase bills are issued showing ficticious profit. However, the assessee was not given an opportunity to cross examine Mr. Mukesh Chokshi and when an opportunity was given and assessee was present Mr. Mukesh Chokshi was not available. The only basis for this above statement is that the payments are not made immediately but even statement itself indicate that they were capital gains earned by the assessee as speculation profits and in question No.4 in the statement Mr.Mukesh Chokshi admits the purchase of 10500 shares of Rashel Agro Tech Ltd. made out of adjusted share profits and therefore confirmed that this is an 'adjustment transaction'. In view of this statement in question Nos. 4 and 5, we are unable to understand how the transactions becomes a bogus one. There is no evidence except this oral statement which is also not submitted for cross-examination to prove/disprove the transaction. Whereas the assessee furnished transaction details, the bank accounts, purchase and sale of other listed companies, speculation profit and loss and also evidence in the form of balance sheet filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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