TMI Blog2011 (2) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... es were sold on 20.03.2002. - the cost of acquisition of such shares has to be taken into account, instead of average cost of acquisition. Disallowane of expense - Since it was the first year of business activity and the assessee had no infrastructure, this was the compelling reason for the assessee to outsource various concerns including M/s. Goyal M.G. Gases Pvt - Reasons for the AO went by the irrelevant extraneous consideration, viz., PPF, etc. were not produced by the assessee - Obviously, it was for M/s. Goyal M.G. Gases Pvt. Ltd. to pay salary to its employee and they would be maintaining such ledgers - This appeal is bereft of any merit. We accordingly dismiss this appeal - ITA No.666 of 2009 - - - Dated:- 18-2-2011 - MR. JUST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said 20,35,000 shares were sold @ Rs.2.23 paise per share, which was as per the prevailing rate in Bombay Stock Exchange (BSE) on the date of transaction, i.e. Rs.22.03.2002. It was also explained that the rate of Rs.3.35 per share mentioned in the bank statement was the rate as per the DEMAT statement of HDFC bank, which takes the transaction rate of that particular script prevailing at the end of the month in which transaction took place. Since no other documents were furnished in support of this plea, the AO adopted the sale rate of ₹ 3.35 paise per share and on that basis concluded the loss thereby allowing the loss for sale of shares @ Rs.1,58,13,028 instead of Rs.2,02,19,778 claimed by the assessee and disallowing the balance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wance of Rs.9,13,081/-. 4. Before the CIT (A), the assessee had produced requisite material, though for the first time justifying both the claims. The CIT (A) called for remand report from the AO and thereafter deleted the addition, inter alia, observing that the AO, in his remand report, has not specifically commented upon the additional evidence submitted by the assessee. The additional evidence which was submitted by the assessee was in the form contract note from PNR Securities Ltd., which clearly showed that 20,35,000 shares of Doogar were sold @ Rs.2.23 per share and the net price credited to the party works out to Rs.2.23 per share. The evidence regarding sale price as on 20.03.2002 was confirmed by the BSE. The bank statement of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal either suo motu or through AO (by remanding the matter back) should have made inquiry, which had not been done and therefore, order passed by the Tribunal is perverse on facts. It was contented that the Allahabad High Court in the case of Ram Prasad Sharma Vs. Commissioner of Income Tax [119 ITR 867) has held that under Rule 46A, the assessee shall not be entitled to produce before the AAC (first appellate authority) any evidence, whether oral or documentary, which was not produced in the course of proceeding before the Income Tax Officer except in specified circumstances. Where repeated opportunities were given by the ITO to produce evidence but no evidence was given by the assessee, fresh evidence cannot be admitted by CIT (A). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee itself before the AO. However, as per the additional evidence filed by the assessee, the date of sale of share was shown as 20.03.2002. This anomaly was not thrashed out by the CIT (A) or by the Tribunal, was the contention of the learned counsel which, according to her, amounted to an error of orders. We are not inclined to accept this submission as well. 10. Before the CIT (A) it was submitted that the shares sold by the assessee were identifiable, i.e., shares which were held in DEMAT form and, therefore, the gain/loss had to be worked out with reference to the sale of such shares only. It was pointed out that the shares were sold on 20.03.2002 at the price ruling on the stock exchange on that date, i.e., @ Rs.2.23 per sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to what services had been rendered by M/s. Goyal M.G. Gases Pvt. Ltd. We find from the order of the CIT (A) that the assessee had furnished an explanation, which was found to be satisfactory by the CIT (A) and the same is as under: (1) No comparison could be made with the expenses of last year as in the last year, there was no case of business activity and the expenses were very nominal. However, during the year in question, the assessee was engaged in regular business activity on whole time business. To corroborate this submission, the assessee had given the particulars of income of two years which showed NIL income on account of interest receipt, bill discounting charges and sale of shares, which was Rs.2.48 Crores, Rs.2.30 Crores an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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