TMI Blog2016 (4) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of the case, as well as in law, the Learned CIT(A) has erred in confirming the action of the Leaned Assessing Officer in reopening the case u/s 148 of the Income Tax Act, 1961, on the basis of the statement of a third party, without considering the merit of the case. 2. Having regard to the facts and circumstances of the case, as well as the law, the Learned CIT(A) has erred in confirming the action of the Learned Assessing Officer in treating Long Term Capital Gain of ₹ 2,72,550/- as Income from Other Sources. 3. The learned CIT(A) has erred in confirming the action of the Leaned Assessing Officer in not granting the set off of Long Term Capital Loss amounting to ₹ 2,84,814/-without considering the facts and circumstances of the given case. 4. The Appellant pleads leave to add, amend, alter, or delete the said grounds of appeal. 2. The brief facts of the case are that the return of income declaring total income of ₹ 3,30,754/- was filed on 27.08.2003. The return was processed under section 143(1)(a)of the Act. The case was subsequently reopened under section 147 and a notice under section 148 was issued on 30.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill for sale of shares etc., and on the basis of afore mentioned documents it was submitted by the ld. AR that it is simply a case of legal purchases of shares in physical form dematerialized and then sold in recognized stock exchange. It was further submitted that M/s. Buniyad Chemicals and M/s. Jay Kay Dee Industries Limited are registered companies and the activities and administration of the registered companies are governed by Companies Act in India. Ld. AR also drawn our attention to the judgement rendered by ITAT Mumbai Bench in ITA No. 1175/Mum/2012 and ITA No. 1176/Mum/2012 wherein the Hon ble ITAT has dealt with the similar situation and decided in favour of assessee. On the other hand ld. DR relied upon the orders passed by AO as well as CIT(A). 6. We have heard the counsels for both the parties and we have also perused the material placed on record as well as the orders passed by the lower authorities and after considering the same, we have observed that the co-ordinate Bench of ITAT Mumbai has already dealt with the similar issue in ITA No. 1175/Mum/2012 and ITA No. 1176/Mum/2012 where in also the assessee s in those cases have dealt with the share transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is concerned, the evidence on record indicate that the assessee had indeed earned speculation profit by sale of APTECH shares which the Assessing Officer has not doubted. Further the assessee also suffered speculation loss as stated above in February, 2001 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 transactions undertaken by Mr. Mukesh Chokshi and his group of companies, mainly Gold Finvest Pvt. Ltd. Richmond Securities and Alembic Securities, which are dealing in interconnected stock ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transaction. Whereas the assessee furnished transaction details) the bank accounts) purchase and sale of other listed companies) speculation profit and loss and also evidence in the form of balance sheet filed much before the said shares were sold. The sale of shares was undertaken in December 2001 whereas the return for AY 2001-2002 was filed by August 2001 itself indicating the purchase of shares and outstanding amounts to M/ s. Golden Finvest Ltd in the statements. In view of the documentary evidence in favour of the assessee, we are unable to accept the contention of the Assessing Officer based on the statement which is also un- supported by any other evidence to deny the benefit of purchase of shares by the assessee on 8-4-2000. Not only that the Assessing Officer has also gave credit for the same amount of purchase of shares at cost and did not treat the sale proceeds as bogus/unaccounted income. The only action taken by the Assessing Officer is to deny the assessee the benefit of long term capital gain and subsequent deduction under section 54EC of the Act as the assessee invested the capital gains in REC Bonds. We do not see any reason to agree with the findings of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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