TMI Blog2004 (6) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... eopened on receipt of intimation from the DDI (Inv.) stating that the long-term capital gain declared by the assessee was false and that the transaction was not genuine and a cheque had been taken by the beneficiary, i.e., the assessee by paying cash amount equivalent to the cheque amount and the premium thereon. The AO recorded reasons and issued notice under s. 148 of the Act. The assessee filed return in response to the notice declaring the same income as declared in the original return. During the course of reassessment proceedings the assessee submitted his reply and furnished various evidences in support of his claim of long-term capital gain. However, the AO held that the assessee had failed to lead evidences to support the claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ummons issued by the AO could not be held against the assessee. The assessee had placed before the AO all necessary bills and evidence to establish the transaction. It was incumbent upon the AO to prove that the material and evidence relied upon by the appellant was bogus. The mere reliance on the statement of the third parties who were never examined by the AO could not be held to be sufficient to come to a finding that the long-term capital gain shown by the assessee was representing undisclosed income of the appellant. In this case the AO has not brought any evidence which can remotely suggest that the material placed before him by the assessee was unreliable, suffered from defects and were inconsistent. On the basis of above findings th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the AO and nothing adverse has been said about these documents in the assessment order. The AO has merely relied upon the statement of third parties which was recorded by the AO himself. Moreover, that statement does not directly implicate the assessee. It has been argued that the said statement could not be made the basis for assessment. In support, reliance has been placed on the ratio of decision of Hon'ble Gauhati High Court in the case of Eveready Industries India Ltd. vs. Jt. CIT (2000) 163 CTR (Gau) 523 : (2000) 243 ITR 540 (Gau) and Jt. CIT vs. George Williamson (Assam) Ltd. (2003) 181 CTR (Gau) 69. The learned counsel informed that the sale proceeds have been duly accounted for in the account of the appellant and has been rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally incorrect in as much as the company was a registered company with the Registrar of Companies. The shareholder cannot enforce the attendance of the company in which investment has been made in the capacity of a shareholder. As regards the statement of Mr. Praveen Mittal, the learned Authorised Representative argued that Mr. Praveen Mittal was not the witness of the appellant but was that of the Revenue. His non-appearance in the assessment proceedings cannot be interpreted against the appellant. On the contrary, it was the onus of the AO to enforce the attendance of Mr. Praveen Mittal and the absence of appearance of Mr. Praveen Mittal in the assessment proceedings and without giving opportunity of cross-examination of Mr. Praveen Mitta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee was simply a shareholder of the company. He has made investment in the company in which he was neither a director nor was he in control of the company. He has made investment in shares of which necessary evidence have been filed. Purchase of shares in the asst. yr. 1993-94 have been reflected by the assessee and also accepted by the Revenue. The sale of shares is through a broker. The rate at which the shares were purchased and sold is also not in dispute. The payment has been received through account payee cheque. All these facts are borne on record and accordingly the assessee has discharged his onus. On the other hand, the AO has not brought any material in support of his allegation that the transaction was not genuine. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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