TMI Blog2013 (11) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Apex Court in the case of Kishan Chand Chella Ram vs CIT rep[orted in [1980 (9) TMI 3 - SUPREME Court] has held "that the burden is on the Department to prove that the money belongs to the assessee by bringing proper evidence on record and the assessee could not be excepted to call the concerned person in evidence to help the Department to discharge the burden that lay upon it". Assess was in possession of the shares in question and had sold the said shares in course of ordinary transaction of sale of shares at stock exchange and if the broker did not file any evidence since the same were seized by the Revenue Department, there is no fault with the assessee. From the aforesaid facts it is clear that the shares in question were al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts giving rise to the present appeal are as follows:- The appeal relates to the Assessment Year 2004-05. The assessee-opposite party is an 'individual'. He filed return of income on 31.3.2005 declaring income of Rs.34,97,761/-. The case was selected for scrutiny and the income from long term capital gain amounting to Rs.17,54,237/- on sale of 19000 shares of Focus Industrial Resources through broker M/s. MKM Finsec, Delhi was investigated. It transpired that the shares were purchased on 8.7.2002 for Rs.1,90,000/- and sold on 14.8.2003 for Rs.19,54,948/-. The resultant gain was treated by the assessee as long term capital gains. The assessing officer examined him and was of the view that as the broker had not given details and furni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce made an addition of Rs.19,51,038/- as income from undisclosed and unexplained sources u/s 68 of I.T. Act. On the other hand during the course of assessment as well as appellate proceedings the AR's of the appellant filed written submission along with documents and vehemently opposed the AO's action inviting attentionto0 the facts of the case, the main points which have not been properly considered by the AO or have been totally ignored which are as under:- i) The shares were applied and allotted directly from the company Focus Industrial Resources Ltd. Who is registered with ROC and copy of master data details as per records of ROC were filed. ii) The payment of the share application money was made through Account payee Demand Draft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledger account of the appellant in the books of share broker. f) Copy of Bank Statement of appellant with Bank of India, Agra. x) Further during the course of assessment proceedings it is seen that notices u/s 133(6)/131 were issued to the share broker were complied with. This fact seen alongwith the evidences as referred in Para(ix) above duly prove the existence of the share broker alongwith the transaction with the assessee. The AO has wrongly compared that onus of the assessee is the same as required in respect of cash credit entries. The Hon'ble Jodhpur Tribunal had the occasion to consider a case in respect of similar type of share transaction. The decision reported in 13 SOT 61 in the case of ITO vs. Smt. Kusum Lata wherein the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it". Similar view has been expressed by the Hon'ble Allahabad High Court in the case of CIT vs. Daya Chand Jain Vaidya 98 ITR 280. xii) The AR's of the appellant has also strongly emphasized on the peculiar fact that after the allotment of shares, the same were transferred to Demat A/c, remained in demat account during the period of holding and transferred to the demat account of the buyer, itself proves the genuineness of the purchase/sale transaction of shares having regard to the relevant provisions contained in the Depository Act. The transaction made through demat account is in itself an evidence to prove the genuineness of share transaction. Merely because the sale of shares fetched a handsome price, which price is supported by offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re amount of sale of shares as income from undisclosed and unexplained sources u/s 68 of I.T. Act. Therefore, I am deleting the entire amount of Rs.19,51,038/-. However, the AO is directed to assess the long term capital gains of Rs.17,54,237/- as shown by the appellant." The Tribunal has upheld the finding. It had held that the assess was in possession of the shares in question and had sold the said shares in course of ordinary transaction of sale of shares at stock exchange and if the broker did not file any evidence since the same were seized by the Revenue Department, there is no fault with the assessee. From the aforesaid facts it is clear that the shares in question were allotted to the assessee in the public issue which were held i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
