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2018 (10) TMI 1088 - AT - Income TaxAddition u/s 69 - Unaccounted income in the shape of long term capital gain - exemption u/s 10(38) denied - failure to prove existence of long term capital gain on sale of listed shares on recognized stock exchange - Held that:- In this case the assessee has recorded the purchase transactions of shares in the books of accounts and shown in the Balance Sheet as on 31st March, 2009. The books of accounts of the assessee were duly audited and have not been disputed by the AO. The AO has denied the claim of the assessee by relying on the report of the ITO Investigation, Indore as well as the statement of Shri Mahesh Pancholi recorded by the AO. Both the parties have advanced the arguments similar as in the case of Shri Pramod Kumar Lodha vs. ITO [2018 (8) TMI 508 - ITAT JAIPUR] as held that merely supplying of statement to the assessee at the fag end of the assessment proceedings is not sufficient to meet the requirement of giving an opportunity to cross examine the witness when the witness himself was not available at the place. Accordingly, we hold that the denial of the claim on the basis of suspicion without any cogent material to show that the assessee has brought back his own unaccounted income in the shape of long term capital gain, the said action of the AO is not sustainable. The authorities below qua this issue and delete the addition made by the AO on this account. - Decided in favour of assessee
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