TMI Blog2011 (8) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench hearing these appeals. Therefore, the matter was referred to the opinion of the ld. Third Member. The ld. Third Member has agreed with the view taken by the ld. Judicial Member in both these cases. Therefore, in view of the majority decision, the appeals of the assessees are allowed. 2. In the result, appeals of the assessees are treated as allowed. (Order pronounced in the open Court on 11.10.2011). (B.C. MEENA) (H.S. SIDHU) Accountant Member Judicial Member Date: 11th October, 2011 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI G.E.VEERABHADRAPPA, VICE PRESIDENT (AS A THIRD MEMBER) ITA No.323/Agr/2006 Assessment Year : 2001-02 Smt.Amita Agarwal, Others Versus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only issue arising in the assessee appeal in the present case is the non-acceptance of its claim in respect of long term capital gain (LTCG) on the sale of shares, which stands treated by the Revenue as income from other sources, as in its view the assessee was unable to prove the share transaction(s) yielding the capital gain under reference. 3.1 For the detailed reasons listed in the case of Shri Baijnath Agarwal (ITA No.133/Agr/2007), I have, vide my dissenting order dated 10.02.2009, taken a different view from that by my ld. Brother, dismissing the assessee s appeal on this ground, in that case. 3.2 On the basis of the hearing, and the examination of the record, I find the facts and circumstances in the present case, as also th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned AM s dissenting order dated 10.2.2009 wherein he has taken a different view from that of the learned JM. The learned AM further writes that the facts and circumstances in the present case, as also the respective cases of the opposing parties, are very similar to those obtaining in the case of Shri Baijnath Agarwal (supra). That is how the difference of opinion between the Members constituting the Division Bench in both these cases has come up before me and the Hon ble President has nominated me as a Third Member under Section 255(4) of the IT Act, 1961 to resolve this difference. 5. In the case of Shri Rajesh Kumar Garg, written submissions were filed wherein it is contended by the assessee that the Hon ble Accountant Member has di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand, is decided in favour of the assessee by the Third Member, therefore, on the basis of the discussions by the Third Member in the case of Shri Baijnath Agarwal cited supra, I agree with the view taken by the learned Judicial Member and hold that the CIT(A) has erred in facts as well as in law in upholding the order of the Assessing Officer treating the income in question under the head long term capital gain as sham and bogus and taxing the same under the head income from other sources . The questions raised on the disputed issue are answered accordingly. 9. The matter shall now be placed before the regular Bench for deciding the appeals in accordance with the majority opinion. Decision pronounced in the open Court on 30th Augus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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