TMI Blog2008 (4) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... might have been introduced by her in her books in the guise of long term capital gain to avoid payment of tax. There is no evidence on record which can prove the sale consideration of shares which was duly supported by bills issued by broker and there is no evidence to prove that this amount represented unaccounted money of the assessee received in the guise of sale proceeds of shares. The learned Assessing Officer has not even invoked the provisions of section 68 and the fact remains that the assessee disclosed the sale of shares and receipt thereof in her return of income and has claimed exemption under section 54EC. So there is no case of treating these sales proceeds as income from other sources. Following the case of ITO v. Smt. Kusumlata [ 2006 (8) TMI 266 - ITAT JODHPUR] , We decide the issue in favour of the assessee and the factual matrix supplement the version of the assessee and there being no evidence on record to supplant the contention of the assessee, there is no question of making addition on the amount under the provisions of section 68 of the Act. To further strengthen my above finding, reference may be made to the decision which was recently delivered in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redited in her account No. 6522 with PNB, Krishna Nagar, Mathura. (iv)That the sale proceeds of shares were invested in capital gains bonds issued by NHAI to avail exemption under section 54EC. (v)That the Assessing Officer has admitted having made spot enquiries through the Inspector and has not recorded a finding that M/s. Surya Udyog Ltd. was non-existent or that its shares were not listed in the Stock Exchange or that the broker was non-existent or that he was not a member of the Delhi Stock Exchange as mentioned in the bills and vouchers provided by them to the appellant. The Assessing Officer has not held that the shares were not acquired by the appellant or that she continued to possess the said shares even after their sale. (vi)That the appellant could not possibly keep track of the purchaser of the shares which were sold through a broker. The rate of ₹ 110 at which the appellant sold her shares was quoted at the Gauhati Stock Exchange. (vii)In the case of Income-tax Officer v. Rajiv Agarwal [2004] 139 Taxman 206, Hon ble SMC-1, Bench of ITAT, Delhi (ITA No. 960/Delhi/2004) vide its order dated 4-6-2004 held that Commissioner (Appeals) was just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor by pinning the liability on the broker and the broker has remained silent on this aspect. In the case of ACIT v. Sri Alok Kumar others, the Hon ble ITAT SMC Bench, Agra observed that an assessee can be saddled with an addition if he either refuses to give particulars of the person from whom the loan has been taken or gives the particulars of a person who is nonexistent or who denies having advanced such loan to the assessee or who on investigation is found to lack the capacity to advance the loan or is connected with the assessee in such a manner in which the assessee is in a position to collude and manipulate. All the above ingredients are present in the appellant s case in so much that - (a)The assessee and his broker have failed to disclose the identity of the purchaser of the shares. (b)The purchaser being the actual creditor in the appellant s cases unidentifiable. Hence, there is no possibility or scope to ascertain the purchaser s capacity to pay the said amount or the genuineness of the transaction. (c)M/s. S.J. Capital Limited is the appellant s broker, dealing on her behalf. Hence, the probability of a collusive transaction cannot he ruled o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her savings bank account with Bank of India, Mathura. The allotment of 2000 equity shares to the assessee, is evidenced from the letter/information of such allotment by M/s. Surya Udyog through letter No. SUL/01/Pref./284 dated 21-3-2001. Her folio number was 1084 and 20 share certificates Nos. 49995 to 50014 for 100 equity shares each comprising of shares with distinctive Nos. 2746401 to 2748400 were received by the assessee. This investment is duly reflected in the Balance Sheet of the assesses which is placed in Paper Book at pages No. 13 and 14, as on 31-3-2001 and 31-3-2002 for assessment years 2001-02 and 2002-03 respectively. These shares were sold on 12-4-2002 through stock broker M/s. S.J. Capital Limited, Delhi who issued contract note No. 16 dated 12-4-2002 and purchase bill showing the delivery of shares with their distinctive numbers and showing net credit of ₹ 2,19,140 to the assessee and the said amount of ₹ 2,19,140 was received by the assessee through demand draft in her favour which was credited on 1-6-2002 in her bank account No. 6522 with Punjab National Bank, Krishna Nagar, Mathura. She invested ₹ 2,20,000 in capital gains bonds issued by Nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paper Book there is proof of purchase of shares for a consideration of ₹ 20,000. This is a copy of Demand Draft which has not been refuted by the learned Assessing Officer and at page No. 32 there is an acknowledgement slip by Surya Udyog Limited issued to the assessee. At page 33 of the Paper Book information regarding allotment of equity shares is placed. Next are the copies of share certificates placed from pages 34 to 53 of assessee s Paper Book. These documents prove the allotment of shares to the assessee. Sale of 2000 shares is evidenced from page No. 54 of assessee s Paper Book. A statement of accounts is placed at page 57 of assessee s Paper Book which is the account of the assessee with the broker. From page No. 59 of assessee s Paper Book Private Placement of Non-convertible Redeemable Taxable Bonds with benefit under section 54EC of the Income-tax Act for long term capital gain is enclosed. The other relevant documents are also placed in the assessee s Paper Book. Therefore, with the force of various decisions, copies of which are placed in assessee s Paper Book, I am inclined to accept the plea raised by the assessee/appellant. Under similar facts and circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t which was recently delivered in the case of CIT v. Anupam Kapoor [2008] 299 ITR 179 wherein it has been held by their Lordships that:- The assessed s case was reopened on receipt of an intimation from the Deputy Director of Income-tax (Investigation) stating that the long-term capital gain declared by the assessee was false and the transaction was not genuine. In response to a notice under section 148 of the Income-tax Act, 1961, the assessee submitted his reply and furnished evidence in support of his claim of long term capital gain. The Assessing Officer held that the assessee failed to lead evidence to support his claim of long term capital gain and considered the amount of ₹ 1,74,552 as unexplained credit and it was added in the income of the assessee. The Commissioner (Appeals) deleted the addition holding that the Assessing Officer had not discharged his onus and there was no material or evidence with the Assessing Officer to come to the conclusion that the transaction shown by the assessee was a bogus transaction. The Commissioner (Appeals) took the view that if a company was not available at the given address, it could not conclusively prove that the company wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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