TMI Blog2016 (3) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment, collection recovery of STT. Recognized stock exchange had been empowered to collect the STT, the A.O. is empowered to make assessment of such STT as per Section 102 of STT Act as per Chapter VII of the Finance Act No.2 of 2004. There is no contrary material to hold that is not in fact STT but some other charges except the apprehension of the A.O. which is not found substantiated. We, accordingly uphold the contention of the assessee and as accepted by Ld. CIT(A) that the sum is in fact STT duly deducted by the broker from the payments made to the assessee on sale of shares. - Decided in favour of assessee - ITA Nos. 1753, 1754 /Ahd/2012 - - - Dated:- 29-2-2016 - Shri Rajpal Yadav, JM And Manish Borad, AM For the Appellant : Shri Nagendra Singh, Sr.DR For the Respondent : Shri R. N. Vepari H.R. Vepari, ORDER Per Manish Borad, Accountant Member. These two appeals by the Revenue are directed against two separate orders of CIT(A)-II, Surat dated 29.05.2012. Assessments were framed u/s 143(3) r.w.s. 254 of the Income-tax Act, 1961 (in short the Act) for Asst. Year 2005-06 on 30.12.2001. The only common issue in both these appeals of Revenue is as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 166500 shares assessee sold 166499 equity shares through M/s Grishma Securities Pvt. Ltd. for total sum of ₹ 49,66,501/-, the result of these purchase/sales transaction was short term capital gain of ₹ 39,49,008/-. In support of the purchase and sale of the equity shares assessee furnished contract notes for purchase and sale along with copy of demat a/c and bank statement figuring out sale and purchase and equity shares, and amount paid/received towards purchase and sale. However, the Assessing Officer was not satisfied with the reply of assessee and went ahead to make addition again u/s 68 for ₹ 49,66,501/- being sale consideration received from sale of shares by observing following in his assessment order u/s 143(3) r.w.s. 254 of the Act- 10. In the instant case, the following facts come light on a detailed analysis of the share transactions and the submissions of the assessee: (i) The company Seagull is a penny scrip and not a renowned scrip and as per the letter of stock exchange, the same is not listed. The assessee has failed to prove that this is not an off market transaction. (iii) Moreover, as apparent from the returned income it is seen that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of Assessing Officer and did not bring any new material evidence on record. 7. The ld. AR submitted that in order to prove the genuineness of the transaction giving rise to short term capital gain as well as furnishing of supporting evidence for purchase and sale of shares, to prove identity, creditworthiness and genuineness of the transaction following details and documents were furnished before lower authorities :- 1. For calculation of short term capital gain on shares transactions, separate calculation sheet is enclosed herewith. 2. Shares A/c. from your humble assessee's audited books of account is enclosed herewith. 3. Zerox copies of share purchase bills of M/s. Rajesh N. Jhaveri are enclosed herewith. 4. Confirmation account copy of M/s. Rajesh N. Jhaveri is enclosed herewith. 5. Zerox copies of share sold bills of M/s. Grishma Securities Pvt. Ltd. are enclosed herewith. 6. Confirmation account of M/s. Grishma Securities Pvt. Ltd. is enclosed herewith. 7. Certificate given by M/s. Grishma Securities Pvt. Ltd. regarding Security Transaction Tax deducted from sale transactions is enclosed herewith. 8. Zerox copy of form No.lODB showin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record forming part of the paper book we are of the considered opinion that the sale consideration received from sale of equity shares at ₹ 49,66,501/- cannot be treated as unexplained cash credit u/s 68 of the Act because assessee has offered complete explanation about the nature and source of the credit which has happened in the year under appeal through bank transaction and complete details of M/s Grishma Securities P. Ltd. (from whom the sale consideration of ₹ 49,66,501/- is received) in the form of its membership No., contract note, SEBI registration No., PAN and bank details were made available to the Assessing Officer. 11. As regards income of short term capital gain is concerned as to whether it comes within the purview of section 111A of the Act we find that in the decision of Co-ordinate Bench referred and relied by the ld. AR in ITA No.4082/Ahd/2008 (supra) the issue has been examined and decided at length. We find it pertinent to go through the decision of co-ordinate bench in ITA No.4082/Ahd/2008 (supra) wherein following ground was raised by the Revenue :- 1) On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made out by the revenues is that such ST was not paid. In other words, the contention of the revenue is that these sale of shares are chargeable to STT but the broker has not deducted such tax. In view of this, the transaction being chargeable to STT 2nd condition laid down in Section 111A(1)(b) is also satisfied. So far as payment or recovery of STT is concerned, it can be taken care of by Chapter VII of the Finance No.2 Act of 2004 which provides for assessment, collection recovery of STT. Recognized stock exchange had been empowered to collect the STT, the A.O. is empowered to make assessment of such STT as per Section 102 of STT Act as per Chapter VII of the Finance Act No.2 of 2004. The claim of the assessee is that such STT has been deducted by the broker M/s. Garishma Securities Pvt. Ltd. as per certificate issued by them is not found incorrect. The only confusion remained was about the word used in the bill issued by Garishma Securities Pvt. Ltd. The said broker had mentioned the word T/O.DE.CHG for the sum of ₹ 3654.79 deducted by it and not treated by the revenue as STT whereas the broker had clarified by the certificate issued subsequently that it is in fact STT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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