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2016 (2) TMI 1261 - AT - Income TaxBogus purchases of shares - Addition u/s 68 - HELD THAT:- The assessee has received the money on sale of shares as the said sale of shares is at the Stock Exchange, which fact is not in dispute. The Tribunal has sent the matter back to the file of AO to ascertain the date of purchase, so as to decide as to whether the assessee has earned short term capital gain or long term capital gain. In the present proceedings, out of the two scripts, for one scrip, the Tribunal has already sent the matter to the AO and, the Hon’ble High Court [2014 (7) TMI 643 - BOMBAY HIGH COURT] has held finding of the Tribunal’s order dated 20/10/2010 in regular assessment proceeding would have direct relevance/ bearing on the Tribunal deciding the appeal arising from the assessment under section 143(3) and 153 A of the Act for the same assessment year and thus directed to recall the order of the Tribunal and directed to rehear the appeal. The department has not challenged the order of the Tribunal [2010 (10) TMI 762 - ITAT, MUMBAI] before the High Court, the said order has become final,with regard to order under section 143(3) wherein the issue was restored to the AO. It may be noted that the assessee could not prove the purchases of penny stock shares of M/s Shalimar Agro Ltd. and M/s G.Tech Info Training Ltd., however, assessee submitted before us that the entire purchase and sale of shares are fully supported by necessary documents/evidences. Therefore, we also restore the issue to the file of AO to avoid the conflicting assessment order in respect of same AY and direct the AO to verify and examine the actual date of purchase in both the cases and thereby to determine the short term capital gains or long term capital gains, or it may be added in income of the assessee u/s 68 on the basis of the alleged incriminating material found during the search as the case may be, and pass fresh assessment order after giving opportunity of being heard to the assessee and decide the same in accordance with law. - Appeal of assessee is allowed for statistical purposes.
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