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2015 (11) TMI 1297 - AT - Income TaxShort term capital gain - AO held to be as bogus and not real accordingly assessed the same as income of the assessee from undisclosed sources - Held that:- The assessee has furnished all the details relating to purchases as well as the sales. The brokers through whom the assessee had purchased the shares have also confirmed the transactions. The payments towards purchase of shares have gone through the banking channels except a very small amount. The shares purchased by the assessee have been credited to the D-mat account of the assessee. The deficiency noticed was the time gap between the purchase of shares and credit of the same in the D-mat account of the assessee. The delay in making payment and the delay in crediting the shares in the demat account is dependent upon various factors including the understanding between the buyer and seller. Thus, from the point of view of the assessee, she has established the details of purchases with sufficient documentary evidences and those documentary evidences were also confirmed by the share broker also. Further, it is settled proposition that date of broker notes is considered as the date of purchase and in this regard, one may refer to the Circular No.704 dated 28-04-1995. In our view, the assessee cannot be punished in respect of defaults, if any, committed by the share broker, since the factum of purchase and sale of shares have been accepted by Ld CIT(A). From the point of view of the assessee, the broker has delivered the shares purchased by her. We further notice that all the shares purchased by the assessee are that of reputed companies only. On the contrary, the Ld CIT(A), as noticed earlier, has drawn only inferences about the date of purchases and he has not brought any material on record to support the view taken by him. Hence, we are confronted with two different situations, viz., (a) the assessee has furnished materials to support the claim of purchases and both the assessee and the seller of shares have confirmed those materials and (b) the Ld CIT(A) has drawn inferences which is not supported by any materials. Under these set of facts, in our view, the case of the assessee should weigh more, since his claim is supported by certain documents. We are unable to uphold the view taken by Ld CIT(A) that the shares have been purchased only on the date on which they were credited in the d-mat account. Accordingly, we set aside the order of the Ld CIT(A) on this issue and direct the assessing officer to assess the impugned income declared by the assessee as short term capital gain. - Decided in favour of assessee. Commission expenses estimated by the AO. Since the Ld CIT(A) has accepted the genuineness of purchase and sale of shares and since we have directed the AO to assess the gain arising on sale of shares as short term capital gain, the impugned addition made on estimated basis is liable to be dismissed. Accordingly, we set aside the order of Ld CIT(A) on this issue and direct the AO to delete this addition.- Decided in favour of assessee.
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