TaxTMI 
TaxTMI 
2015 (7) TMI 766
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....n of Learned Assessing Officer in reopening the case, without considering the provision of law. 2. On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in treating the Long Term Capital Gain of Rs. 12,01,513/- earned on account of sale of share of M/s Buniyaad Chemicals Ltd. as Short Term Capital Gain, without considering the facts and circumstances of the case". 2. Brief facts of the case are that the assessee had filed a return of income for AY 2003-04 on 30.03.2004 declaring total income of Rs. 13,96,425/- which included long-term-capital-gain on sale of shares of M/s Buniyaad Chemicals Ltd. The said return of income was duly processed u/s 143....
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.... Talent Infoways Ltd. on 4.03.2003, The said ledger account of the assessee is maintained by M/s Gold Star Finvest Private Ltd. 3. Shri Mukesh Maneklal Chokshi, who has floated companies of this group has categorically admitted in a statement recorded u/s 131 of the I.T. Act on 25.11.2009 that he is engaged in the business of providing accommodation entries to various persons through various companies floated by him. Mrs. Falguni A. Sanghavi, the assessee is o e such persons who has obtained such accommodation entries. 3. The Assessing Officer enquired the assesee to explain the mode of purchase of shares of M/s Buniyaad Chemicals Ltd., however, the assessee submitted that the same was adjusted against the speculation profit on or befor....
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....any infirmity in re-opening the assessment u/s.147 of the Act by the AO. As regards the date of purchasing the shares of M/s. Buniyaad Chemicals Ltd., it is a fact that the appellant failed to furnish evidence as to the actual date on which these shares were purchased. The information that was available on record was that the appellant has got the impugned shares dematerialized with NSDL on 4.4.2002. There was no information of any sort for the period prior to this date. Secondly, there was also no evidence produced as to the actual purchase price paid for acquiring these shares. The appellant has filed copy of her bank statement in Bank of Baroda which reflects the payments received by her on sale of shares and therefore, the aforesaid mat....
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....-gain has been treated as short-term-capital gain and there is no income escaping assessment; Secondly, section 149 provides that if the notice u/s 148 is issued after the period of 4 years from the end of the relevant assessment year then income chargeable to tax which has escaped assessment should be Rs. 1 lakh or more. Here, in this case, the income chargeable to tax which has escaped assessment is "nil" and only difference is in the rate of tax. Section 147 envisages that income chargeable to tax must have escaped assessment and in this case, it cannot be held that any income chargeable to tax has escaped the assessment. Another contention raised by the Ld. Counsel is that, the AO has noted that the assessee has sold 21,000 shares of th....
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....apital-gains. 6. On the other hand, the Ld. DR strongly relied upon the order of the CIT(A) and submitted that assessee has failed to prove the purchase in the year 2001. 7. We have considered the rival submissions and also the relevant material placed on record. On the perusal of the records and the assessee's contention, prima facie we find that, on merits it is not in dispute that assessee have sold the shares after June, 2002 and the purchase of shares and purchase amount have also not been disputed. The only contention raised by the Department is that purchase date should be treated from the date of dematerialization i.e. when the shares were entered into D'mat Account. In fact for actual purchase price paid by the assessee , they ar....