TMI Blog2009 (7) TMI 1251X X X X Extracts X X X X X X X X Extracts X X X X ..... rket transactions, it is noted that neither these are illegal nor prohibited and only some of the compliances have to be made by the brokers. As regard the aspect of such compliances, we find that it is not the case that all the off market transactions have not been reported by the concerned brokers to the stock exchange as per rules and even otherwise, any failure on the part of the brokers in doing such compliance cannot make the contract between the assessee and the broker illegal or void as the broker may face the consequences for his default under relevant statute. It is also noted that all the transactions are not off market transactions, hence, the AO's approach to pick and choose the only such instances which are favourable to him cannot justify such addition. We are further of the view that economic consequences as a result of off market transactions or otherwise have taken place and, therefore, such transactions cannot be treated as sham merely for some discrepancies or for the view of the AO in regard to genuineness of these transactions. Thus, we are of the view that the share transactions cannot be considered as ingenuine/sham and, therefore, the sale proceeds of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this appeal could be taken up firstly. The learned Departmental Representative also agreed. Thereafter, the learned counsel for the assessee for better co-ordination, narrated the facts which shall be detailed hereafter. The grounds raised in these appeals read as under : 1. On the facts and circumstances of the case, the CIT(A) erred in holding that s. 68 was not applicable to the transactions in shares under examination. 2. On the facts and circumstances of the case, the CIT(A) erred in observing that there was adequate evidence to support the assessee's case that the 'gain' resulted from sale of shares. 3. On the facts and circumstances of the case, the CIT(A) erred in holding that the case of each assessee of the Haldiram Group should be examined in isolation despite the overwhelming evidence to show that they had acted in tandem. 4. Without prejudice to the stand taken in the respective assessment orders, the CIT(A) erred on the facts and circumstance of the case in holding that she was not empowered to examine the additional grounds raised by the Revenue during the appellate proceedings. 5. On the facts and circumstances of the case, the CIT(A) erred in arriving a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this order of the AO, the assessee preferred appeal before the learned CIT(A) wherein detailed submissions were made. Some of the major contentions of the assessee are as under : (i) .......... (ii) The above-referred shares were purchased through the share brokers duly registered with SEBI and the concerned stock exchange. (iii) All the purchases are supported by contract notes giving full details as to the name of the scrip, quantity, price at which purchased, total purchase consideration, brokerage, bills of brokers, vouchers, etc. (iv) The purchases are made at the prevailing market rate as quoted by recognised stock exchange. Relevant quotations are on record. (v) The price for purchase of shares is proved and there in no dispute about the source of payment. (vii) Actual delivery of shares were taken by the assessee either physically or delivery in assessee's Demat account. (viii) Shares so purchased are duly transferred in the name of the assessee in the records of respective companies. (ix) The AD has not pointed out any material to doubt or dispute the purchases of shares of respective companies on respective dates. (4)(i) The shares purchased by the assessee have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee and is referring to a stray instance. And further the inference sought to be drawn by AO from the said stray case that the assessee must have deposited all the cash in the bank account of ultimate buyer is an outcome of surmises and conjecture. On the other hand, the assessee has filed affidavit stating on solemn affirmation that the assessees of the group have not given any cash or any amount to the ultimate buyers or brokers in lieu of cheques issued by them towards transfer of shares by the assessee to them. Said affidavit has remained unrebutted. There is no evidence or material with the Department which may be contrary to what is stated in the affidavit. In short there is nothing to doubt or dispute the sale of shares by the assessee and receipt of sale price by the assessee from the buyer or broker. (5) In view of the above referred clinching documentary evidence and material on record and there being no evidence or material to rebut the said evidence, the transactions of purchase and sale of shares are conclusively proved by the assessee. The same cannot be washed away by the Revenue by indulging into surmises and conjecture, and by selectively referring to the stra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed CIT(A) found that there were 12 brokers through whom the assessee had purchased the shares and analyzed the nature of transactions in general executed by them. The learned CIT(A) thereafter examined the details of brokers through whom these shares had been sold and other facts like statement of such brokers were also examined. The findings of the learned CIT(A) being factual, are reproduced as under : 3.7 I have carefully considered above submissions of the appellant. My observations/findings are as under : (I) Merit of the evidence During the year under reference the appellant has shown capital gain of ₹ 50,02,726. The said gain has accrued to him on account of following purchase/sale of shares. Sale : Name Date Number Amount Peacock Traders Exporters Ltd. 21-06-2001 12000 12,46,440 Offshore Finvest Ltd. 29-08-2001 15000 10,33,950 Limtex Investment Ltd. 06-11-2001 17000 12,53,410 Shree Securities Ltd. 18-03-2002 18000 16,90,200 52,24,000 Purchase : Name Date Number Amount Peacock Traders Exporters Ltd. 01-06-2000 12000 54,378 Offshore Finvest Ltd. 05-07-2000 15000 72,300 Limtex Investment Ltd. 25-09-2000 17000 46,240 Shree Securities Ltd. 25-01-2001 18000 39,960 2,12,878 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The AO has mentioned that Shri Prabhudayal Chomal, director of M/s PDC Securities denied having done any transactions on behalf of the assessee of Haldiram Group. It is also seen from the assessment order that the appellant on being confronted with this denial of PDC Securities asked for a cross-examination of the said broker. The AO did not accept to his request, the AO rather thought that the reply obtained by him from the assessee in this regard amounts to giving full and proper opportunity to rebut the disputed evidence and then he closed the hearing : He treated the entire transaction as non-genuine on this account. The appellant's Authorised Representative before me pleaded that this is not correct picture because the said director, Shri Chomal, later clarified that' he made this statement off-hand without referring to his books of account for an earlier period; his statement was recorded in January, 2005 whereas the transaction in question took place in June, 2001. And that he is not expected to remember old transactions offhand like this. The appellant also submitted that the impugned statement was extracted from Shri Chomal without allowing him to refer to his bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 478(SC), Kishinchand Chellaram vs. CIT (1980) 19 CTR (SC) 360: (1980) 125 ITR 713(SC) and Kalra Glue Factory vs. Sales-tax Tribunal (1987) 65 CTR (SC) 233: (1987) 167 ITR 498(SC). The assessee was ready for all sorts of enquiry and verifications but the AO did not feel the need to undertake any such exercise. In this scenario the finding of the AO based on out of context selective pieces of evidence is to be taken with a pinch of salt. The appellant on the other hand has produced complete and clinching documentary evidence. Wherever any dispute arose regarding any testimony that also stands clarified with the help of documentary evidence as demonstrated above. In fact, nothing remains to be proved after that. In the circumstances as discussed above I treat this entire transaction as genuine. Offshore Finvest Ltd. Shares of this company are purchased through Shri Kunjbihari Kejriwal, Kolkata. The AO has mentioned in the assessment order that Shri Kunjbihari Kejriwal was not traceable at the address given. The assessee vide his letter dt. 4th Dec., 2006, duly received by the AO on the same date, submitted as under : We have also been informed by Your Honour that the notices issued u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I have no hesitation in holding that there is no material on record which would compel one to hold this purchase as suspicious. The purchase of shares is duly backed by the delivery of the shares duly reflected in the Demat account of the assessee vide No. 14647833 which is also available on the record of the AO. In this scenario I hold this transaction as genuine. Sale of this scrip was arranged through Shri Pradeepkumar Daga, broker at Kolkata whose testimony has been used against all the assessees of the group. A survey was conducted in the premises of Shri Pradeepkumar Daga on 20th Jan., 2005. During the course of survey Shri Pradeep Daga has submitted copies of the contract note in respect of shares of the companies traded through him, party ledger, copies of bank account, Sauda book, etc. which were impounded by the Department and are on the record of the Revenue. He has also submitted names and addresses of the buyers of the scrips sold by Haldiram Group through him. He has admitted that the transactions are duly reflected in his record. He has confirmed to have made payments of sale proceeds of shares by account payee cheques to the members of the assessee group. Shri Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of the assessee. Moreover, the sale of shares through Mr. Pradeepkumar Daga is evidenced by several documents which have not been discussed and analysed by the AO. These are contract notes, Demat accounts, receipt of sale proceeds duly reflected in the bank accounts, etc. It is not even case of the AO that the said documents are bogus or fake or forged. He has also not made out a case that cash has flown from the assessee to be deposited in the bank account of the purchaser from where cheque has been issued as sale proceeds and deposited in the bank account of the assessee. The statement of Shri Pradeep Daga, as agitated by the appellant, has not been seen and appreciated in its entirety. On a perusal of same I find that question/answer Nos. 14 and 15 are quite relevant in this regard. The same are as under : Q. No. 14 : Please state which stock exchange is the transaction of the shares or other transaction is reflected with respect to the above stated group ? Ans. No. 14 : It is reflected only in the Calcutta Stock Exchange. Q. No. 15 : Do you think such transactions are false in nature ? Ans. No. 15 : Since as a broker all payments and sale proceeds are made in cheque I c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction as claimed by Shri Pradeepkumar Daga, M/s Swada Securities Ltd. and KCA Stock Broking (P) Ltd. are genuine or not. Kolkata Stock Exchange in its reply dt. 26th May, 2005 addressed to Addl. Director of IT (Inv.), Unit-III(2), Kolkata, has observed that the transaction with respect to Pradeep Daga is not matching with the records of the stock exchange. The appellant was confronted with this report of the stock exchange for his counter comments. The assessee vide submissions dt. 27th Nov., 2006 has mentioned that the records of the Kolkata Stock Exchange are not fully related as reportedly there was some enquiry by SEBI in respect of the operations of the Kolkata Stock Exchange. The assessee is not liable for any irregularity in the records of the Kolkata Stock Exchange. The report of Kolkata Stock Exchange merely says about mismatching of the transaction and it has not stated that the transactions are not genuine. Also the assessee has pointed out the provisions of s. 112(1)(d), Explanation thereto of the IT Act, 1961 according to which for claiming LTCG tax @ 10 per cent, it is not necessary that the transaction should be registered or done through any stock exchange. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand draft and client ledger along with copy of his bank statement. He also confirmed that shares were delivered physically to the appellant and the transaction was duly recorded in the ledger of the clients. The AO has not taken any cognizance of the same. I hold that the purchase of said scrip is genuine. The company Limtex Investment Ltd. also confirmed this transaction. The aforesaid letter of the company was duly received by the AO on 25th Sept., 2006. Thus it is an undisputed transaction. The existence of the company is also supported by the letter of Government of India, Ministry of Company Affairs, Kolkata dt. 7th Sept., 2006 addressed to Shri V. Krishnamoorthy which has been obtained on my records. The entire transactions, therefore, held as genuine. Sale of the scrip is done through M/s N.M. Lohia Co. Shri N.M. Lohia vide letter dt. 1st Sept., 2006 addressed to the AO (duly received in his office on 8th Sept., 2006) has concerned the transaction entered into by him with the appellant-group. He has also furnished copies of the relevant contract notes, ledger accounts and the copy of his relevant bank statement. He has also confirmed that the delivery of the share was recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate were (sic-not) supported by any material or evidence, was merely of the nature of allegations or appreciations. The learned CIT(A) also held that the AO approached to the issue with a predetermined decision to tax the whole amount at the maximum rate without caring for the legality or otherwise of his action particularly when in the course of search also no incriminating material was found which could have suggested that these transactions were sham or ingenuine. The learned CIT(A) also relied on various judicial decisions including the decision of Hon'ble Supreme Court in the case of Union of India vs. Azadi Bachao Andolan (2003) 184 CTR (SC) 450: (2003) 263 ITR 706(SC) in this regard. The leaned CIT(A), thereafter, also examined the other aspects of the issue like shares in term sold by the buyers for a loss, onus on assessee to prove the nature of income and transactions done off the market and held that all these facts have been suitably explained by the assessee. The learned CIT(A) also observed that off market transactions were neither banned under the IT Act nor they were unlawful in any other manner. For this view he also relied on the decision of the Tribunal in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the AO at the appellate stage to treat the same as adventure in the nature of trade. The relevant findings of the learned CIT(A) are as under : 19. Highlights of my observations and findings on all the issues (supra) are as under : 1. Evidence produced by the appellant seen and found complete and of concrete nature. 2. Evidence as seen and analysed by me clinches the issue of LTCG in favour of the appellant. 3. Entire LTCG is treated as fully proved and genuine on the strength of such documentary evidence. 4. The AO did not dispute documentary evidence at all. There is no finding of the AD that the same was either fake or forged. 5. Such documentary evidence includes Government records as well, i.e., Government of India' Ministry of Company Affairs' letters, bank statements collected by the AO himself, registration number of brokers with SEBI, incorporation certificate of respective companies issued by RoC. 6. The brokers through whom purchases/sales are effected are registered with SEBI and respective stock exchanges. 7. The companies whose scrips are traded are registered under the Companies Act. 8. Government of India, Ministry of Company Affairs' letters esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether violation of principles of natural justice seen in the case ?'Held : Yes. 27. By adopting a 'holistic view' AO stamps all share transactions of appellant-group as bogus, sham, non-genuine and manipulated' this could not be established by any clinching corroborative evidence rather on an analysis of the entire evidence, the same is held as genuine. 28. AO's sole reservation about the otherwise genuine LTCG is on account of the legal position that it enjoys a concessional rate of tax. 29. I agree with the AO to the extent that when all the group cases are seen together for the 4-5 years involved, astronomical sum of LTCG returned by them appears quite suspicious and incredible justifying AO's contention that the same should be seen from a holistic view; this is a valid point to initiate enquiries and investigation into the share transactions of the entire group which the AO did. But on a close and dispassionate examination of the entire transactions it is found perfectly in order and cannot be faulted with. Even the AO himself, despite all his objections and reservations on this issue, has not been able to pinpoint any lacunae therein. 30. A totally fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned CIT-Departmental Representative also contended that where an exemption was claimed from tax, the onus was on the assessee to prove such claim. The learned CIT-Departmental Representative further submitted that in case there were some deficiencies on the part of the AO in view of the learned CIT(A), then, the learned CIT(A) should have herself rectified them. The learned CIT-Departmental Representative thereafter referred to the order of the SEBI in the case of M/s K.K. Fintrade Ltd. wherein price manipulation in the scrip of M/s Priyans Saree Industries Ltd., one of the scrips purchased and sold by the assessee was involved and one of the brokers, namely, Shri Sunil Shares Stock (P) Ltd. was also involved. He thereafter referred to the various facts of this order to show that the parties were found to be involved in unfair trade practices relating to securities market and in view of the SEBI, such brokers were aiding the clients in their fraudulent acts. Hence, such order also impacted adversely the genuineness of such share transactions. The learned CIT-Departmental Representative further placed strong reliance on the order of the AO and the stand taken by him during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee as well as an affidavit filed by one of the connected assessees Shri Rajendra Kumar Agrawal (copy of these documents placed at pp. 128 to 131 and 141 to 144 of the paper book). He further contended that the questions raised and facts narrated by Shri Rajendra Agrawal in his affidavit remained unanswered which fact strongly supported the case of the assessee. The learned counsel further contended that even otherwise the so-called ex parte evidence did not, in material sense, go against the assessee and it did not prove the case of the Department either. The learned counsel further extended his argument on this aspect by stating that there were voluminous documentary and other clinching evidences which conclusively prove the genuineness of the transaction. Thereafter, he submitted that there were 12 brokers through whom shares were purchased and there were 10 brokers through whom the shares were sold by all assessees of the group. He then moved to specific broker-wise details. The learned counsel submitted that shares of M/s Peacock Traders Exporters Ltd. were purchased through M/s K.C.A. Stock Broking (P) Ltd. who gave all the documentary evidences and also confirmed the transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquired by the AO. In case of PDC Securities (P) Ltd., originally the director of that company denied the transactions. However, subsequently he confirmed the transactions and referred to pp. 154 to 164 of the paper book to substantiate his such claim. The learned counsel, in this regard, further contended that no opportunity to cross-examine such person was given to the assessee. However, the original statement of such person had been rebutted by the assessee through affidavit dt. 15th Dec., 2006. The learned counsel submitted that after taking into consideration all these facts and evidences on record, there could not be any doubt that the impugned transactions of sale and purchase of shares were genuine. The learned counsel thereafter, also drew our attention to various parts of the appellate order to support his contentions. The learned counsel further emphasized on the fact that no incriminating material was found during the course of search, rather documents like contract notes, other correspondences found therein supported the genuineness of the transactions. As regards other issues, he placed strong reliance on the order of the learned CIT(A). The learned counsel, replying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of documentary evidences, then, a holistic view has to be taken and in the present case majority of the brokers have supported the claims of the assessee and surprisingly some of them have not been approached by the AO at all. Thus, on appreciation of documentary evidences submitted by the assessee, the genuineness of the transactions appears to be established. As regards the aspect of off market transactions, it is noted that neither these are illegal nor prohibited and only some of the compliances have to be made by the brokers. As regard the aspect of such compliances, we find that it is not the case that all the off market transactions have not been reported by the concerned brokers to the stock exchange as per rules and even otherwise, any failure on the part of the brokers in doing such compliance cannot make the contract between the assessee and the broker illegal or void as the broker may face the consequences for his default under relevant statute. It is also noted that all the transactions are not off market transactions, hence, the AO's approach to pick and choose the only such instances which are favourable to him cannot justify such addition. The learned CIT-Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome is to be assessed under different heads depending upon the source/nature of such income and if the AO has assessed the same under a specific head which is subsequently deleted, then, it cannot be taxed under any other head merely for this reason. For example, if an income is of the nature of business income and if it cannot be taxed under that head as per law for any reason whatsoever, then, same cannot be taxed under any other head as an alternative. On this issue, the stand of the assessee is of long-term capital gain which has also been accepted by the Department in assessment proceedings completed before the search and in the course of search, as stated earlier, no incriminating material has been found to cast a shadow on the nature of such transactions and the AO in s. 153A proceedings has taken a different stand and, therefore, if such stand of the AO has not been accepted, then, the AO cannot take an alternate stand for taxing it under a different head in the course of appellate proceedings. The assessee has also relied on certain judicial decisions regarding the scope of powers of learned CIT(A) which also support the claim of the assessee that no new source of income c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances, legal position and discussion, we hold that there is no merit in any ground of this appeal of the Revenue. Hence, we dismiss all the grounds raised by the Revenue. 13. In the result, the appeal filed by the Revenue stands dismissed. 14. Now, we shall take the following appeals IT(SS)A Nos. 118, 119, 120 and 122/Nag/2007; 134 to l38/Nag/2007; 141 and 142/Nag/2007; 143 to 145/Nag/2007; 111 to 113/Nag/2007; 157 to 161/Nag/2007; 153 to 156/Nag/2007; 147 to l49/Nag/2007; 139 and 140/Nag/2007 The issues involved in all these appeals are identical to the issues raised in IT(SS)A No. 121/Nag/2007. Hence, all the grounds raised by the Revenue in these appeals are dismissed following the detailed reasons given therein. IT(SS)A No. 132/Nag/2007 15. Both the parties agreed that the facts and issues were identical as raised in IT(SS)A No. 121/Nag/2007 except that the transactions in the scrip of Priyans Saree Industries Ltd. and M/s Sunil Shares Stock (P) Ltd. was also involved in this case. Hence, the order of SEBI in the case of K.K. Fintrade (P) Ltd. was to be considered. 16. We have considered the submissions of both the sides. The facts are identical and we have also dealt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the learned CIT(A) has erred in holding that the share application money claimed to have been received by the assessee from M/s Regency Fintrade (P) Ltd. was genuine and that the assessee had established the identity of the creditor, his financial capacity and the genuineness of the transaction. 3. On the facts and in the circumstances of the case, the learned CIT(A) has erred in holding that the sales-tax incentive of ₹ 55,73,950 received by the assessee was a capital receipt. The learned counsel for the assessee at the very outset, submitted that the issue raised in ground Nos. 1 and 2 was covered by the order of the Tribunal in assessee's own case for asst. yr. 2000-01 in IT(SS)A No. 60/Nag/2007, order dt. 3rd March, 2009 and drew our attention to paras 6 and 6.1 of the order of the Tribunal. The learned Departmental Representative could not controvert this claim of the assessee. However, he preferred to rely on the order of the AO. 21.1 We find that this issue was also involved in assessee's own case for asst. yr. 2000-01 wherein the Tribunal held as under : 6. We have heard the learned CIT 'Departmental Representative and perused the material placed befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x assessees. Their index numbers were in the file of the Revenue. The Revenue, apart from issuing notices under s. 131 at the instance of the respondent, did not pursue the matter further. The Revenue did not examine the source of income of the said alleged creditors to find out whether they were creditworthy. There was no effort made to pursue the so-called alleged creditors. In those circumstances, the respondent could not do anything further. In the premises, if the Tribunal came to the conclusion that the respondent had discharged the burden that lay on it, then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence.' The facts in the case of the assessee are identical to the facts in the case of Orissa Corporation (P) Ltd. (supra). In this case, the assessee has furnished all the particulars of the share applicant including its PAN. The AO apart from issuing notice under s. 133(6) did not pursue the matter further. Therefore, the notice issued to the share applicant returned unserved cannot be the criteria to treat the share application as unexplained cash credit in the hands of the assessee. 6.1 Furthermore, we find that the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncentive received by the assessee in terms of Package Scheme of Incentives, 1993 of Government of Maharashtra was to be treated as capital receipt, as claimed by the assessee or it should be as revenue receipt as agitated by the Department. We find that identical issue in the case of the assessee for asst. yr. 1998-99 was subject-matter of appeal before the Tribunal, Nagpur Bench vide ITA No. 416/Nag/2001, wherein the Tribunal after detailed analysis of various judicial pronouncements in comparison to the facts of the assessee's case, including those of Sahney Steel Press Works Ltd. (supra) and Dy. CIT vs. Reliance Industries Ltd. (supra) etc. held that the subsidy received by the assessee was a capital receipt and not a revenue receipt. The learned Departmental Representative pointed out that the matter is pending before the Hon'ble High Court. However, so long as the Tribunal's order is not reversed, the same is binding. Therefore, keeping in view the totality of the facts and circumstances of the case and respectfully following the Special Bench decision of Tribunal, Mumbai in the case of Reliance Industries Ltd. (supra), decision of Hon'ble apex Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing the same reasons, we dismiss these grounds. 27. Ground No. 6 raised by the Revenue in both the years reads as under : On the facts and circumstances of the case, the CIT(A) erred in holding that the gift claimed to have been received were genuine. 28. The facts, in brief, are that in asst. yr. 2000-01 the assessee's minor daughter had received total gifts of ₹ 3,11,000 and in asst. yr. 2001-02 she received gifts of ₹ 6,21,000. Out of the said gifts, the gifts worth ₹ 3 lakhs in each year were claimed to have been received from four persons. The said persons were claimed to be maternal uncle of the assessee's daughter Kumari Komal Agrawal and the gifts were made out of natural love and affection. Since she was minor, hence, the gifts were considered in the case of the assessee. The AO formed an opinion that the genuineness of said gifts had to be considered in conjunction with the receipts of so-called long-term capital gains. Hence, by applying the principles of preponderance of probabilities he made an addition of ₹ 3 lakhs in each year. Aggrieved by this, the assessee carried the matter in appeal before the learned CIT(A) wherein the detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord, an inference can reasonably be drawn that the winning tickets were purchased by the appellant after the event. Therefore, it was held that the majority opinion of the Settlement Commission after considering surrounding circumstances and applying the test of human probabilities had rightly concluded that the assessee's claim about the amounts as being her winnings from races is not genuine. And that it cannot be said that the explanation offered by the appellant in respect of the said amounts was rejected unreasonably and that the finding that the said amounts are income of the assessee from other sources is not based on evidence. Whereas in the cases of appellant-group their legitimate claim of LTCG is well established on the basis of clinching documentary evidence as discussed above. In order for me to arrive at this finding I have relied on the evidence that was before the AO/Investigation Wing. Therefore, it is not a case where either genuineness of the relevant document is disputed or any other extraneous factor is brought on record that could be termed as incriminating in this regard. Rather the AO's sole objection to the said LTCG is its fabulous amount which eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ready reference. Accordingly, we dismiss this ground in both these years. 31. In the result, both these appeals of the Revenue are dismissed. 32. Now, we shall take up IT(SS)A Nos. 251 and 252/Nag/2007. First we shall take up Revenue's appeal in IT(SS)A No. 251/Nag/2007. The issue raised in ground Nos. 1 and 2 is identical to the issue raised in IT(SS)A No. 121/Nag/2007. Hence, both these grounds are dismissed following the reasons given in IT(SS)A No. 121/Nag/2007. 33. Ground No. 3 reads as under : On the facts and in the circumstances of the case, CIT(A) erred in law in giving the more weight/privilege to affidavit of Shri Tilak Singh Parmar upon his statement recorded on oath during the search operations. 34. The facts, in brief, are that during the course of survey at Mumbai office and consequent search operations, one Shri Tilak Singh Parmar, who was working as office boy, was found in possession of a diary maintained in his own handwriting. In the said diary, financial transactions were recorded from which a trial balance was prepared by the Department. These transactions were found relevant for two financial years, namely, financial years 2002-03 and 2003-04. The stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the statement of Shri Tilak Singh Parmar which has been retracted by him subsequently also. It is also noted that the said person is working in the capacity of peon/office boy. Hence, how his statement only can be a proper basis for making such addition. We further find that the entries recorded in such diary have been reconciled by the assessee from the books of account of various group concerns/assessees. Hence, in these facts and circumstances, in our opinion, the order of the learned CIT(A) in deleting the addition is correct in law. Thus, ground No. 3 of the Revenue's appeal is also dismissed. 37. In the result, Revenue's appeal is dismissed. 38. Now, we shall take up Revenue's appeal in IT(SS)A No. 252/Nag/2007. Ground No. 1 in this appeal reads as under : On the facts and in the circumstances of the case, the CIT(A) erred in law in giving the more weight/privilege to affidavit of Shri Tilak Singh Parmar upon his statement recorded on oath during the search operations. 39. The issue raised in this ground is originating from addition made in 2003-04 which was the subject-matter of this appeal before us by ground No. 3 of Revenue's appeal in IT(SS)A No. 251/N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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