TMI Blog2015 (6) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal GOA, though we appreciate the amount of spade work that the revenue authorities did to come to certain conclusion, but on the other hand, nowhere in either of revenue authorities orders, do we find the negation of the details and evidences filed by the assessee, so that the revenue authorities could clinch the initiative. We find that the certificates of brokers, i.e. Action Financial Services (India) Ltd. and District Securities Pvt. Ltd. along with complete details have not been considered in completeness. We find that the references were made, to those documents, which were at the disadvantage to the assessee.In such a circumstance, we are of the opinion that the case needs fresh adjudication. - Decided in favour of assessee for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant craves to leave to add, to alter and amend the above grounds of appeal as the occasion may demand or circumstances require . 3. The facts are that a search and seizure operations were conducted on the Mr. Aftab E Patel and Mrs. Aisha Aftab Patel on 10.01.2007, wherein the search party found certain jewellery and cash. Besides cash and jewellery, the search officers also found that the assessee had declared LTCG of ₹ 22,36,965/- on the sale of shares, which according to the revenue authorities were result of Penny Stocks dealings in the shares of M/s. Eltrol Ltd. and M/s. Database Finance Ltd. According to the details as found, the above scrips were purchased at ₹ 1.20 and ₹ 1.19 per share respectively an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Patel. On being questioned, the assessee submitted that he had made the purchases through the broker. If the broker had responded that no shares were not routed through the stock exchange, would not alter the fact that the assessee had made a genuine purchase. Similarly in case of sale of shares, through M/s Action Financial Services (India) Ltd., it was noticed that date of sale bills and contract notes did not match. On these sale of shares and consequent capital gains, the assessee claimed the capital gains. The entire exercise and explanation did not impress the AO. The assessee therefore, withdrew capital gains shown by the assessee and paid taxes thereon. 6. On this basic background, the AO proceeded to treat the sale proceeds a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged capital gain of Ps. 22,36,965/- is chargeable to tax u/s.68 of the Act. Whereas the Ld. Assessing Officer has charged such sum of ₹ 22,36,965/- as income from other sources, the same is confirmed as unexplained cash credit u/s. 68 of the Act. The addition made by the Ld. Assessing Officer is accordingly confirmed, Ground Nos. 1 to 12 are therefore dismissed. 8. The CIT(A) also disallowed the Commission computed at 5% on ₹ 22,36,965/- at ₹ 1,11,848/- as the entire set of circumstance was sham and therefore not allowable. 9. Against this order of the CIT(A) the assessee now before the ITAT. 10. Before us, the AR submitted the facts and took us through the documents filed before the revenue authorities. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to normal gain in itself would amount to incriminating. This is so, because, the assessee was forced to change his statement and claim in the return, after the search. This can only mean that what has been claimed in the ROI was not the complete truth. In such a circumstance, we reject the additional ground. 15. Coming to the original GOA, though we appreciate the amount of spade work that the revenue authorities did to come to certain conclusion, but on the other hand, nowhere in either of revenue authorities orders, do we find the negation of the details and evidences filed by the assessee, so that the revenue authorities could clinch the initiative. We find that the certificates of brokers, i.e. Action Financial Services (India) Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remained not properly explained. 2. The Learned CIT (Appeals) has erred in holding that 5% service charge of ₹ 105,313/- being 5% of ₹ 21,06,273/- is charged to tax on the ground that source of purchase of above shares was not properly explained as no person will arrange the benefit of non-genuine long term capital gain to other person without charging the commission/service charges. The appellant craves to leave to add, to alter and amend the above grounds of appeal as the occasion may demand or circumstances require. 22. Since the grounds of appeal are the same and the facts are also identical with ITA No. 793/Mum/2010, we are inclined to take the same decision in this case as well, we therefore, set aside the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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