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2024 (2) TMI 330 - AT - Income TaxAddition u/s 56(2)(x) - sale of flats - difference between the value taken by the assessee and the fair market value (FMV) u/s 50C - HELD THAT:- We find that the value adopted by the assessee and FMV of the flats u/s 50C is within the range of ± 10% and, therefore, the provision of Section 56(2)(x) of the Act are not applicable which provides that where the market value of the property is more than the sale consideration received by the assessee then the difference between the two shall be considered. The case of the assessee finds support from the decisions of the coordinate benches in the Sandeep Patil [2020 (10) TMI 923 - ITAT BANGALORE], John Flower India Ltd. [2017 (1) TMI 1682 - ITAT MUMBAI] and Dulari Devi Hetampuria [2020 (6) TMI 468 - ITAT KOLKATA] - Hence Ground of assessee allowed. Bogus Short term capital loss on sale of equity shares - assessee’s claim u/s 10(38) rejected - CIT(A) concluded assessee has incurred bogus short term capital loss which was bogus and was rightly disallowed by the AO - HELD THAT:- As there is no adverse comment in the form of general and specific statement by Pr. Officer of the Stock Exchange or by the company whose shares were involved in the above said transactions. We note that the AO only referred to the report of the investigation wing which was based upon the statements of several persons who were wholly unrelated. The same is the position with regard to report of the SEBI. In the instant case also the name of the assessee was neither quoted by any of such persons nor any materials relating to the assessee was found at any place where investigation/searches were carried out by the Wing. Thus find the of decision in Raigarh Jute & Textile Mills Pvt. Ltd. [2023 (6) TMI 1309 - ITAT KOLKATA] squarely applies to the instant case. Also decided in Dipansu Mohapatra (2023 (2) TMI 392 - ORISSA HIGH COURT] has held that tribunal was justified in allowing assessee’s claim u/s 10(38) of the Act where the assessee has filed the details of purchase and sales of shares alongwith contract notes for purchase and sale, D-mat A/C and bank statement and furthermore no incriminating materials were found against the assessee in the survey conducted in the premises of the assessee and therefore the AO could not deny the claim u/s 10(38) of the Act merely by relying on the statements of accommodation entry providers which were recorded much before the date of survey. In the present case before us the facts of the assessee are on better footing even as there is no survey on the assessee’s premises and AO relied on the statements of entry providers which were recorded long ago. Besides there was no incriminating materials against the assessee found even in the premises of entry operators/stock brokers. AO has failed to carry out any independent investigations/enquiries into the evidences filed by the assessee and has rejected the claim by the assessee qua loss from shares trading only on the basis of surmises and conjectures and relying on the statements of entry operators who never named the assessee and their statements were recorded long before. Therefore, we set aside the order of first appellate authority and direct the AO to delete the allow the loss - Decided in favour of asessee.
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