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TMI Blog2015 (12) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... /C-III/06-07 dated 21.2.2011 for the Asst Years 2001-02 to 2005-06 respectively against the orders of assessment framed u/s 153A read with section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the 'Act'). 2. The only issue to be decided in these appeals are that whether the assessee is eligible to claim long term capital gains on sale of shares during Asst Years 2001-02 to 2004-05 at a concessional rate of 10% and exemption u/s 10(38) for Asst Year 2005-06 in respect of sale transactions routed through recognized stock exchange. 3. The brief facts of this issue is that the assessee sold the shares of M/s Emkay Consultant Ltd (Listed in Kolkata Stock Exchange) and declared capital gains of Rs. 18,37,287/- for Asst Year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prevailing market rates as per the Calcutta Stock Exchange and treated the long term capital gains as bogus and held that it is only assessee's own unaccounted money that had surfaced in the form of long term capital gains with the connivance of the brokers and accordingly brought to tax under the normal provisions of the Act instead of concessional rate of tax applicable to long term capital gains. On first appeal, the assessee pleaded that there was a search and seizure operation conducted u/s 132 of the Act on Aparna Group of cases which includes assessee herein, wherein, no incriminating materials with regard to the subject mentioned issue before us was found by the search party. The Learned CITA duly appreciated the contentions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as shown by the assessee and tax it as per applicable concessional rate without proper consideration of the entire facts and without proper appreciation of the evidences and arguments put forth in the assessment order that the said income was nothing but assessee's own unaccounted money introduced in the form of long term capital gain with connivance of the brokers. 2. The department craves leave to add, modify or alter any of the ground(s) of appeal and/or adduce additional evidence at the time of hearing of the case. Grounds of Appeal for the A.Y 2003-04 1. In the facts and circumstances of the case and in law, the ld.CIT(A) has erred in directing the AO to treat the long term capital gain of Rs. 15,67,901/- earned out of selling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred in directing the AO to treat the long term capital gain of Rs. 13,46,420/- earned out of selling the shares of M/s.Limtex Investment Ltd as such as shown by the assessee and allow exemption u/s.10(38) of the I.T Act without proper consideration of the entire facts and without proper appreciation of the evidences and arguments put forth in the assessment order that the said income was nothing but assessee's own unaccounted money introduced in the form of long term capital gain with connivance of the brokers. 2. The department craves leave to add, modify or alter any of the ground(s) of appeal and/or adduce additional evidence at the time of hearing of the case. 4. Shri Sanjit Kr.Das, JCIT, Sr. DR argued on behalf of the revenue and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se assessment years, the assessee has valued all the shares at cost and offering the income of trade of these shares either as short-term capital gains or long term capital gains as the case may be. It is further observed that the shares at which the assessee has purchased/sold are authenticated by the quotations of the Stock Exchange and the transactions are routed through the bank accounts and properly recorded in the respective companies. Keeping in view of the facts and circumstances of the case, we find no justification in treating the said transactions as bogus by the AO nor treating the same as business in the nature of adventure in the nature of trade by the ld.CIT(A) is not justifiable. Therefore, we set aside the orders of the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chase and sale of shares were supported by proper Contract Notes, deliveries of shares were received through demat accounts maintained with various agencies, the shares were purchased and sold through recognised broker and the sale considerations were received by Account Payee Cheques, the transactions cannot be treated as bogus and the income so disclosed was assessable as LTCG. 6.4 In the assessment orders under consideration the AO has not considered any of these facts. He has treated the transactions as bogus only on the basis of the suspicion that the difference in purchase and sale price of these shares are unusually high. It is a settled law that assessment cannot be made on the basis of suspicion or surmise. The AO has not brough ..... X X X X Extracts X X X X X X X X Extracts X X X X
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