TMI Blog2009 (9) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. The AO selected the case for scrutiny and asked the assessee to prove the transactions on sale and purchase of shares. With regard to this, the assessee submitted as under: (i) Contract note of the registered share broker in respect of shares purchased. (ii) Details of S. folio Number, certificate number and distinctive numbers of shares purchased along with the letter of transfer issued by the company. (iii) Contract note of the registered share broker in respect of shares sold. (iv) Details of payment received vide account payee demand draft sent by the broker (v) The copy of the bank account of the registered share broker evidencing the amount sent. (vi) Copy of DEMAT account evidencing the physical delivery of shares. (vii) Confirmation of the broker giving complete details of transaction (viii) Name, address and PAN of even the person from whom the shares were purchased and sold. (ix) Affidavit of the share broker confirming the transaction as also his son clarifying any confusion arising in response to their statement written by the ACIT, Cir, 32, Kolkatta . 4. The AO issued notice u/s 132 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spelt out and also the proof of transfer. iv. After 14 months since the shares had shown sharp rise, the same were sold and copy of the contract note was also filed before the Assessing Officer. The sale- consideration was received by account payee demand draft and the same was deposited in the appellant's account. Since the shares were also routed through the de-mat account, the delivery of the shares was not disputed. v. The Appellant states that the transaction is not a paper transaction, and there is full proof of the delivery of the shares. In her de-mat account, the appellant has also shown transactions of other shares such as ACC, L T, ICICI Ltd., Essar Oil etc. in addition of the shares of M/s.Gautam Resources Ltd. This transaction is, therefore, not an isolated transaction, it is emphasized. vi. The confirmation of the broker was also submitted whereas the Assessing Officer is stated to base his order on conjectures, surmises, doubts and the preponderance of possibility. In fact, it is stated that the Assessing Officer conducted several inquiries for cross-verification of the said transactions but at every stage, the appellant's case got stre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is purpose, affidavits have been forwarded to the Assessing Officer directly since the Assessing Officer stated that he had no fax otherwise the affidavits could have been faxed to him before the passing of the assessment order. xi. It is also state that the show cause notice along with the copy of the statement of the broker was given to the appellant by the Assessing Officer only on 18-3-2005 i.e. 10 days before the passing of the order and, which left little time for the broker to clarify his stand from Kolkata. Even the ACIT, Circle-32, Kolkata did not provide the copy of the statement to Shri Aditya Chirimar. It is stated that the affidavits reached the Assessing Officer before 31-3-2005 but this was not taken cognisance of. xii. It is further stated that there was no opportunity allowed to examine the son of the broker. xiii. Reliance is placed by the appellant on the following case laws:- (1) The Hon'ble Calcutta High Court in the case of GIT v. Dhavan Investment Trading Co. Ltd. (1999) 238 ITR 486 (Gal.) has held that as the share transactions were made through registered broker of stock exchange and the quotation of shares have been found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on the art of the ITO in conducting inquiry. xiv. On the issue of not bringing the brother-in-law, Shri Hargovind Goyal before the Assessing Officer which he requested on 9-3-2005, it is stated that this person could not get his train reservation and in fact a copy of the railway ticket to show that reservation was unavailable was produced before the Assessing Officer . 6. After considering the aforesaid submissions, the learned CIT(A) took the view that the AO made the addition on conjecture and surmises and by ignoring the evidence produced. The learned CIT(A) has also held that shares purchased and sold were of public limited company which were quoted in the stock exchange. The payment of sale consideration was received by cheque, there was nothing to prove the alleged tax planning on the part of the assessee and transactions has to be accepted as genuine. He accordingly, directed the AO to treat the amount of ₹ 14,66,650/- as long term capital gain and not as income from unaccounted sources. Aggrieved by the order of the learned CIT(A), the Revenue is in appeal before us. 7. At the time of hearing on behalf of the Revenue, Shri U. S. Raina, learned D ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
