TMI Blog2011 (5) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and suspicion, AO treated the capital gain of ₹ 36,71,882/- declared on sale of share as unexplained credit u/s 068 and the ld. CIT(A) rightly directed the AO to treat the same as capital gain. Therefore, the view taken by the ld. CIT(A) be upheld. In the result, the appeal of the Revenue is dismissed. - Hon'ble Shri T.K.Sharma, J.M. Hon'ble Shri A.N.Pahuja, A.M. Appellant by : Shri Jai Raj Kumar, Sr. D.R. Respondent by: Shri Hardik Vora, A.R. ORDER Per Shri T.K.Sharma, Judicial Member : This appeal is filed by the Revenue against the order of ld. CIT(A)-II, Surat dated 25.08.2009 directing the AO to accept the claim of the assessee of ₹ 36,71,882/- as capital gain treating the same b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing system' of Calcutta Stock Exchange. (d) The transaction of purchase and sales of shares were not done 'offline'. (e) As per guidelines of the SEBI, it is not mandate for any agreement to be entered into. (f) Simply because price of particulars script had increased substantially in a short period of time, it could not be used a ground of treating the purchase/ sales transaction of shares as bogus especially when the genuineness of the transaction had been proved beyond doubt through documentary evidences procured by the AO as also submitted by the assessee along with the confirmation furnished by the brokers supported by bank statements. (g) There was no basis for the AO to treat the sum of ₹ 36,72,631 as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SEBI from Calcutta Exchange, whereas the transactions for purchase and sale of shares of the assessee were made by the said broker prior to 30.9.2005, but the Ld.CIT(A) has not appreciated that the broker was suspended on 30.9.2005 not only on his any illegal activity on 30.9.2005, but was suspended on account of his indulgence in following malpractice and illegal practice /activities since long prior to 30.9.2005 and that fact itself suggest that the said broker has on account of his such practices /activities accommodate to the assessee to book his profit under the long term capital gain by making bogus transactions in his names for purchase and sale of shares of Nidhi Trading Co. (iv) The Ld.CIT(A) has not appreciated that the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see submitted that on doubts and suspicion, AO treated the capital gain of ₹ 36,71,882/- declared on sale of share as unexplained credit under section 68 and the ld. CIT(A) rightly directed the AO to treat the same as capital gain. Therefore, the view taken by the ld. CIT(A) be upheld. 7. After hearing both the sides, we have carefully gone through the orders of the authorities below. It is pertinent to note that before the AO, on behalf of the assessee, it was explained that the purchase transactions were made on the 'on line trading system' and these transactions were genuine. Earlier it was not compulsory for a client to have his own transactions record under SEBI guidelines. With effect from 01.04.2005, it has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not assess the income without supporting evidences and simply could not assume the transactions to be bogus. In support of his contention, the ld. Counsel also placed reliance on the following case laws: (i) Rajnidevi A Chowdhary V/s ITO - ITA No. 6455/M/07 (ii) ACIT V/s Claridges Investments and Finances P. Ltd. 2007 18 S0T 390 (iii) Mukesh R Marolia V/s Ado I. CIT 200665 SOT 247 (iv) CIT V/s Daulatram Rawatmuti 1973 87 ITR 349 (SC) (v) Acchyalal Shaw V/s ITO 2009 121 TTJ (Calcutta) 695 (vi) Prakash Chand S Sandh V/s ACIT 2009 ITA No.3270/Ahd/2008 (vii) Hiteshkumar B Sanghvi V/s ITO Wd 2(2), Surat. 7.3 After considering the aforesaid submissions, in the impugned order, the ld. CIT(A), for the detailed reason giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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