TMI Blog2012 (6) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the Ld. CIT (A)-32, Mumbai dated 08.12.2011 for the A.Y. 2003-04. 2. I first take appeal of Smt. Durgadevi Mundra being ITA No. 1175/M/2012. As ground no.1 3 are not pressed the same are dismissed as not pressed. 3. Ground No.2 reads as under: 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 Long Term Capital Gain of ₹ 2,67,247/- as Income from Other sources without considering the facts and circumstances of the case. 3A. The facts in brief are as under. The information was received by the A.O. from the DDIT (Inv.), Mumbai in respect of search action conducted on M/s. Mahasagar Securities P. Ltd. (Now Ala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT (A) confirmed the action of the A.O. 4. I have heard the parties and perused the record. The Ld. Counsel submits that in respect of the Shares Scam alleged to be involved by Shri Mukesh Chokshi actions were taken against many persons disallowing their claim in respect of long-term capital gain and shortterm capital gain. He submits that on identical set of facts the issue has been considered by the Tribunal. The Ld. Counsel filed the copies of the Tribunal decision by way of compilation as under: i) Mukesh R. Marolia vs. Addl. CIT -6 SOT 247 ii) Rajnudevi Chowdhary vs. ITO -ITA 6455/M/2007(Bom) iii) ITO vs. Truptic Shah -ITA 6455/M/2007(Bom) iv) Chandrakant Babulal Shah -ITA 6108/M/2009(Bom) v) ACIT vs. Shri Ravindra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and debit and credit entries pertaining to same broker were shown in the balance sheet in the return filed for the AY 2001-2002 in August, 2001. There is also a mention of purchasing of shares of the company in the return. It is also on record that the said company vide letter dated 30-6-2000 had transferred the shares in the name of the assessee with the folio No. 15021 and certificate Nos. 105744 to 105848. The Assessing Officer neither questioned the said company nor disproved the transfer of share certificates by 30/6/2000. The only basis for arriving at the conclusion that the transaction is not genuine is on the basis of the statement given by Mr. Mukesh Chokshi on 20-6-2004/20-6-2002 before the DDIT (Inv.) with reference to certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued showing fictitious profit and therefore the purchase are not substantiated by genuine payments. 8. This statement was relied upon by the Assessing Officer to state that the purchase bills are issued showing fictitious profit. However, the assessee was not given an opportunity to cross examine Mr. Mukesh Chokshi and when an opportunity was given and assessee was present Mr. Mukesh Chokshi was not available. The only basis for this above statement is that the payments are not made immediately but even statement itself indicate that they were capital gains earned by the assessee as speculation profits and in question No. 4 in the statement Mr. Mukesh Chokshi admits the purchase of 10500 shares of Rashel Agro Tech Ltd. made out of ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the findings of the Assessing Officer and also the findings of the CIT (A). In fact, the CIT (A) has went ahead in treating the entire transaction as bogus and confirmed the action of the Assessing Officer while holding this will be more for an unexplained receipt of money of the appellant. Hence, Assessing Officer had rightly added the amount by and the action of the Assessing Officer in making this addition is confirmed treating it as STCG . In arriving at this conclusion, the CIT (A) presumed that assessee could have paid full payment of ₹ 16 lakhs by way of cash which was not the case of the Assessing Officer either. There is no evidence even to presume these observations of the CIT (A) as stated above. 7. The facts are iden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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