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2018 (12) TMI 1962 - AT - Income TaxBogus LTCG - onus to prove - bogus share transactions - whether transaction of sale of shares by the assessee was duly backed up by material/evidence including contract notes, de-mat statement, bank account reflecting transactions, the shares having been sold on the online platform of the stock exchange and each trade of sale of shares were having unique trade number and trade time? - HELD THAT:- AO has not brought anything on record to show that assessee or the broker on instruction from assessee took part in or entered into transactions in scrips with the intention to artificially raise or depress the price and thereby automatically induced the innocent investors in the market to buy/sell their stock. It is not the case of the AO that assessee or broker as per instruction from assessee has manipulated the prices of the scrip. Even the market regular SEBI has not made any such specific finding in its report against the assessee. In any case, if the AO had any adverse material against the assessee, he was duty bound to furnish a copy to assessee and granted her an opportunity to rebut the same and also provided an opportunity to cross examine if the material adverse to assessee is used against the assessee to draw adverse inference. We also note that the coordinate benches in the case of Gautam Pincha [2018 (10) TMI 1969 - ITAT KOLKATA] have upheld the assessee’s claim of LTCG on purchase and sale of shares of M/s. NCL Research & Financial Services Ltd. for AY 2014- 15, as in the instant case before us. So respectfully following the aforesaid decision and also taking note of the documents filed before us from which we note that assessee has discharged its onus to prove the genuineness of the transaction by filing the contract note of Purchase through registered broker of Bombay Stock Exchange and transaction happened through banking transaction Coordinate bench of this Tribunal in the case of Prakash Chand Bhutoria [2018 (7) TMI 46 - ITAT KOLKATA] upheld the assessee’s claim of LTCG on sale of shares as in the instant case before us so respectfully following the decision and also taking note of the documents filed before us from which we note that assessee has discharged its onus to prove the genuineness of the transaction of the purchase of shares by filing the share certificate along with share transfer advice and the purchases having taken place through bank transaction and later bonus share allotment letter - The addition based on a common/general report of DIT (Inv.) and there is nothing in the report specifically against the assessee, cannot be the basis for making the addition or draw adverse inference against the assessee. So the action of AO/Ld. CIT(A) cannot be sustained and therefore, the claim of exempt income on LTCG on sale of scrips of M/s. NCL has to be allowed and, therefore, the addition on this issue is directed to be deleted. Appeal of assessee allowed.
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