TMI Blog2014 (2) TMI 1205X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided in favour of assessee. - D.B. INCOME TAX APPEAL NO.54/2012 - - - Dated:- 24-2-2014 - MR. JUSTICE DINESH MAHESHWARI AND MR. JUSTICE P.K. LOHRA Mr. K.K. Bissa, for the appellant. BY THE COURT: By way of this appeal under Section 260A of the Income Tax Act, 1961 [ the Act ], the Revenue seeks to question the order dated 15.12.2011, passed by the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur [ the ITAT ] in ITA No.490/Jodh/2009 relating to the assessment year 2006-07 whereby, the ITAT has dismissed its appeal after finding justified the order dated 02.06.2009 passed by the Commissioner of Income Tax (Appeals), Udaipur [ the CIT(A) ] deleting the additions made by the Assessing Officer [ the AO ] in the assessment order dated 31.12.2008 to the tune of ₹ 37,77,847/- towards the transactions of purchase and sale of shares and another ₹ 1,88,890/- towards the alleged undisclosed comission paid in cash. Put in brief, the relevant facts and background aspects of the matter are that the respondent-assessee s total income, as shown in the return of income for the assessment year 2006-07, consisted of the income from Salary, Long Term Capital Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the appellant vide appellate order dated 21-2-2007 in appeal No.458/2006-07. The appellant has shown capital gain of ₹ 37,77,847/- on sale of shares between the period 8-4-2005 to 5-8-2005. The purchase and sale of shares is as under:- Purchase Name of shares Name of the broker Purchase qty. Total pur. price. M/s. Poonam Pharmaceuticals Ltd. V.K. Singhania. 5,300 35,616 M/s. Gautam Resources Ltd. Renu Poddar 1200 24,324 M/s. Star LTCR Ballabh Das Daga 6000 57,472 Sale: Name of share Name of the broker Sale Qty. Total sale price Total Profit M/s. Poonam Pharmaceuticals Ltd. M.Bhiwantiwala Co. 5,300 1,603,883 1,568,367 M/s. Gautam Resources Ltd. Ahiliya Commercial P. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t were false, fabricated or fictitious or to rebut appellant s claim regarding purchase of shares. Rather the broker confirmed the entire transaction. The reliance placed by the AO on facts liked notice u/s 133(6) issued to the company being returned unserved, delayed payment to the broker, discrepancies in the name of seller as per broker and as per endorsement of the share certificate, certificate for 5300, 1200 and 6000 enquiry shares being received from the companies, dematerialization of shares just before sale etc. would alert an AO and arouse his suspicion for a detailed examination and verification but these facts alone, in the absence of anything else could not negate the impugned transaction in the face of overwhelming evidences produced by the appellant. Moreover the AO did not confront the appellant about the result of his enquiry. The ratio of the judgment of Punjab Hariyana High Court in the case of Chiranjilal Steel Rolling Mills Vs. CIT 84 ITR 22 is squarely applicable to the facts of the appellant s case. Thus the presumption of the AO was without any basis. 12. As regards the presumption of the AO that the appellant paid cash in lieu of accommodation entry gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T found the finding on facts not suffering from any infirmity; and proceeded to affirm the same by the impugned order dated 15.12.2011 while observing, inter alia, as under:- 13. After considering the submissions and perusing the material on record, we find no infirmity in the finding of ld. CIT (A). The ld. CIT(A) has examined the issue in thread bear and found that purchase of shares as well as sale of shares are genuine. The purchase of shares were made through Shri V.K. Singhania, Renu Poddar and Ballabh Das Daga. The shares were purchased in earlier years and were sold during the year under consideration. The shares were sold through another broker i.e. M/s. M.Bhiwantiwala Co., M/s. Ahilya Commercial P. Ltd. All the purchase and sale of shares were dematized in regular course of transaction. Confirmation of purchase of shares through brokers were filed. All the shares are of listed companies. The shares were credited to demat account of the assessee and thereafter on sale of those shares the account of the assessee was debited through demat account. Therefore, there is no question of doubting the genuineness of transactions. There is no evidence that assessee has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Officer: [1985] 154 ITR 148 has been relied upon. It is submitted that truthfulness could not have been assumed on the self-serving recitals in the documents referred by a party. The AO, according to the appellant, recorded the finding after being satisfied that the referred transactions were sham and were of the accommodation entries provided by the broker in lieu of cash; and the fact is clearly seen from the phenomenal growth rates of shares within short span of time without any strong fundamentals. Having given thoughtful consideration to the submissions made and having examined the record, we are clearly of the view that no substantial question of law is involved; and this appeal does not merit admission. True it is that several suspicious circumstances were indicated by the AO but then, the findings as ultimately recorded by him had been based more on presumptions rather than on cogent proof. As found concurrently by the CIT(A) and the ITAT, the AO had failed to show that the material documents placed on record by the assessee like broker s note, contract note, relevant extract of cash book, copies of share certificate, de-mat statement etc. were false, fabricated or f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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