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2017 (5) TMI 1777 - AT - Income TaxCharacterization of income - Additions of the amounts of sale proceeds of shares declared as long term capital gain, treated by the AO as unexplained cash credit under section 68 - addition of unexplained money used for payment of commission for obtaining the said long term capital gain - HELD THAT:- We find that the assessee had purchased the shares of Robinson Worldwide Trade Limited for which it has submitted the purchase bills & ledger account of the purchase broker which clearly reveals that the assessee had earned speculation profit which was used for the purchase of shares of Robinson Worldwide Trade Limited. The said speculation profit and even the purchases have been accepted by the Department while passing the order u/s. 153A r.w.s. 143(3) of the Act for A. Y. 2004-05 and A. Y. 2005-06. Originally, the shares were issued in physical format which got transferred in assessee's name on 14.06.2003 and 20.04.2004. The said fact can be ascertained from the letter received by the assessee from Robinson Worldwide Trade Limited. The shares of the assessee were consolidated and Jumbo share certificate was issued. Thereafter, the said shares were dematerialized to de-mat account of the assessee held with HDFC Bank. Such demated shares were sold through AKD Securities Pvt. Ltd. as can be seen from the sale bills and the payments for the sale of said shares have been received through account payee cheques. Even for assessment years 2004-05, the assessee has submitted various documentary evidences, which have not been considered by the AO. As regards to the reliance placed by the AO on the cross-examination conducted in the case of the assessee, we find that the assessee and the director of the broker DPS Shares & Securities Pvt. Ltd. have nowhere specifically stated in their respective statements that they have issued accommodation entries to the assessee. There is no link between the statement and the assessee. They have simply stated that they issued accommodation entries on instructions of certain third parties. Further, no statements of such third parties have been confronted and in such a case, no question of cross-examination of the broker arises when there is no specific statement with regards to the assessee. Even otherwise, the alleged cross-examination as held was not conducted in context of the assessee and during the course of cross-examination proceedings, the purchase documents which have been stated that the accommodation bills pertain to Shri Brijesh D. Shah and which do not belong to the assessee. Thus as per case law of coordinate Bench of Mumbai Tribunal in the case of Late Smt. Kanchanben J. Shah [2016 (2) TMI 1210 - ITAT MUMBAI] which is identical on the facts of the present case, respectfully following the same, we allow all these three appeals of the assessee.
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