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2018 (3) TMI 1639 - ITAT JAIPURAddition u/s 68 - long term capital gain claimed as exempt income u/s 10(38) was a bogus accommodation entry - Held that:- Assessee has produced the relevant record to show the allotment of shares by the company on payment of consideration by cheque and therefore, it is not a case of payment of consideration by in cash. But the transaction is established from the evidence and record which cannot be manipulated as all the entries are part of the bank account of the assessee and the assessee dematerialized the shares in the D-mat account which is also an independent material and evidence cannot be manipulated. The holding of the shares by the assessee cannot be doubted and the finding of the AO is based merely on the suspicion and surmises without any cogent material to show that the assessee has introduction his unaccounted income in the shape of long term capital gain. The order of the Assessing Officer treating the long term capital gain as bogus and consequential addition made to the total income of the assessee is not sustainable. Hence, we delete the addition made by the AO on this account. Addition u/s 69C - addition on account of notional commission which is consequential to the issue of treatment of long term capital gain as bogus - Held that:- nce, we have reversed the finding of the AO on the issue of treatment of long term capital gain as bogus then, the consequent addition made by the AO on notional commission is not sustainable. Accordingly, the same is deleted. Surrender of undisclosed income from business and profession - treated by the AO as “income from other sources” - Held that:- It is pertinent to note that this treatment of income as income from other sources instead of business income is Revenue neutral as there was no issue of any loss to be carried forward. AO has accepted this income as business income for the assessment year 2012-13 & 2013-14 the AO is not permitted to take a different and contrary decision which is against the rule of consistency. Since this action of the AO is not having any Revenue effect, therefore, in the facts and circumstances of the case when the AO has accepted the nature of income as business income in all the earlier assessment years passed u/s 143(3) r.w.s. 153A. AO cannot take a different and contrary stand for the assessment year under consideration. Hence, in view of the rule of consistency we direct the AO to treat the income offered by the assessee as business income. - Decided in favour of assessee.
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