TMI Blog2011 (5) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee is an individual. For the assessment year under appeal, she filed the return of income on 23.11.2006 declaring total income at ₹ 8,72,299/- including short-term capital gain of ₹ 2,78,413/- and long term capital gain of ₹ 3,41,683/-. The AO framed the assessment under section 143(3) on 28.11.2008 computing total income of the assessee at ₹ 45,44,930/-. In this assessment order, the AO treated the sum of ₹ 36,72,631/- as unexplained cash credit under section 68 as against capital gain on sale of share declared by the assessee. 3. On appeal, in the impugned order, the ld. CIT(A) directed the AO to accept the claim of the assessee of ₹ 34,65,171/- as capital gain on the following grounds: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing, Shri Jai Raj Kumar, Sr.D.R. appeared on behalf of the Revenue and contended that the aforesaid direction of the ld. CIT(A) to accept the claim of the assessee as capital gain is not acceptable for the following reasons: I (a) The Ld.CIT(A) has not appreciated that in pursuance of notice u/s.133(6) of the Act, the broker has stated that the purchases of shares were made as per order of the Assessee, however, further inquiries made directly with the Calcutta Stock Exchange, CSE has vide their letter dtd. 13.10.2008 stated that the purchases of so-called shares were not made by the assessee, but by Bhansal Periwal Co. under the code 'self'. (b) The Ld.CIT(A) has not appreciated that no client code with the name of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade during the said period even in the companies of international standard corporate companies. (e) In view of the ratios laid down by the Supreme Court in the case of Sumati Dayal v. CIT(1995) 80 Taxman 89/214 ITR 801 (SC) in view of section 68 where any sum is found credited in the books of the assessee for any previous year, the same may be charged to income tax as the income of the assessee of the previous year if the explanation offered by the assessee about the nature and source thereof is in the opinion of the AO not satisfactory, in such case there is prima-facie evidence against the assessee i.e. the receipt of money and if he fails to rebut the same the said evidence being unrebutted can be used against him by holding that it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... code was used. Since, the shares were sold after 01.04.2005, the transactions were not under the broker's code. The copy of the SEBI guidelines has been placed on record. With regard to the service-tax and stamp charges it has been submitted by the ld. Counsel that the contract note of M/s. M Bhiwaniwala Co. clearly mentioned that the brokerage was inclusive of service tax etc. In the case of the selling broker, Shri Ashok Kumar Kayan, the Service tax Securities Transaction Tax and Education Cess were separately mentioned. This clearly showed that the AO had not studied the contract notes in detail. 7.1 With regard to the point raised by the AO about the absence of broker-client agreement, it has been submitted that the genuineness ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
