TMI Blog2010 (10) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... ch were purchased on 10.05.2001 for ₹ 83,436/- inclusive of transfer charges and bank charges. During the course of assessment proceedings the assessee submitted that 12000 shares of Suma Finance Limited were purchased for ₹ 80,460/- on 10.05.2001 through broker M/s Aggarwala Co., New Delhi vide their Bill No.SB-1705 dated 17.05.2001 and these shares were sold on 28.12.2001 vide Bill No.P2-1201 dated 12.01.2001 through M/s Sridhar Financial Services Limited, New Delhi for a net consideration of ₹ 11,37,480/-. Photocopies of bills for purchase and sale along with contract notes were filed. The purchase consideration was paid vide Demand Draft No.195551 (Rs.80,000/-) and cash of ₹ 460/-. The sale proceeds were shown as received from M/s. Sridhar Financial Services Limited through Demand Drafts on Nainital Bank Limited, detailed as under :- 28.01.2002 ₹ 6,00,000/- 29.01.2002 ₹ 5,37,480/- 3. Requisitions were issued by the Assessing Officer to M/s Aggarwal Co. and M/s Sridhar Financial Services Limited. Both the requisitions returned unserved with the postal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short term capital gains disclosed by the appellant is her undisclosed income, is not tenable. Accordingly, the Assessing Officer is directed to adopt the short term capital gains as per return and allow set off of brought forward losses under the head capital gains after verification. 4. We have carefully considered the rival submissions and perused the material on record. The issue is duly covered by the decision of Third Member in the case of ITO vs. Smt. Bibi Rani Bansal in ITA No.101/Agr/2005 for the A.Y. 2001-02, in which, vide order dated 09.02.2010 this Tribunal has confirmed the order of the CIT(A). We noted, in that case, the assessee has purchased the shares and sold those shares through M/s. P.K. Jain Associates i.e. the broker. The purchase of shares has not been doubted by the Assessing Officer. Similarly, the purchase has not been doubted by the Assessing Officer in the case before us. The Assessing Officer has doubted the sale consideration which was received by the assessee through Demand Draft from M/s. Sridhar Financial Services Limited on Nainital Bank Limited. The Assessing Officer doubted the sales transaction. In that case, this Tribunal, after consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amination means and implies a clear opportunity after providing copies of such adverse statements to crossexamine. Otherwise also the statement of Shri Ashok Gupta is too vague to be of any evidentiary value. He has nowhere stated that the transaction of the assessee was bogus or not genuine. He has no corroborative evidence to show that the cash for drafts was received from the assessee. In the absence of any corroborative evidence his statement cannot be accepted as true on his mere ipse dixit. Shri Manoj Agarwal was not produced for cross-examination. From his statement no adverse inference can be drawn against the assessee. Shri Manoj Agarwal handed over a letter to D.D.I. (Inv) in which he stated that out of the total transactions, the transactions amounting to ₹ 100 crores were only book entries. So it follows as a necessary corollary that entire transactions were not ingenuine. He has also not named this assessee. With regard to Agarwal Company, there are no adverse comments in the Assessment Order against the assessee. The A.O. has not said anything about the transactions entered through this broker. Whereas the assessee has produced : i) copies of sales and purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in stock exchange being less or the transactions being not reported by J to the stock exchange, would not make a transaction bogus. The stock exchange has intimated the A.O. that they are only having information of the transactions between two members of the stock exchange and not otherwise. In the present case, the transaction was between a member and a non-member and therefore, such transactions were not reported in the stock exchange. Further, the credit in the bank account of J is by clearance. Therefore, the allegation of the A.O. that the amount was deposited in cash has no basis. The assessee has accepted having invested her funds on the advice of her father-in-law. The burden of proving a transaction is always on the person asserting it to be bogus and this burden has to be strictly discharged by adducing legal evidence of a character, which would either directly prove the fact of bogusness or establish circumstances unerringly and reasonably raising an inference to that effect. The assessee made payment for the purchase from her own sources through banking channel. The shares were transferred in the name of the assessee and were held by her for more than one year. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Thus, the sum total of the foregoing discussions go to, cumulatively, establish that the assessee has been successful in proving the long term capital gain earned by him in this case. He has also established that he is exempt from tax qua long term capital gains as has been claimed. 11. In my opinion, this case is equally applicable in the case of the assessee. In the case of the assessee, purchase of the shares has duly been proved and there is no dispute on the purchase of the shares being made by the assessee. The shares were purchased in earlier year. The shares were transferred in the name of the assessee as has been confirmed by the company when enquired by the A.O. The assessee has submitted before the A.O., copies of the contract notes, copies of the sales bills, statement of account from the broker, old address of the broker, new address of the broker. The identity of the broker is proved. Purchases were not doubted by the A.O. The demand draft for the sale consideration was issued from the account of M/s. P.K. Jain Associates i.e. brokers. The money has not been deposited in cash in this account but has come to this account by way of transfer from the account of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the assessee until and unless the assessee has been given the opportunity to cross examine the person. Ld. D.R. was asked in the open Court whether any opportunity for cross examination was provided to the assessee in respect of the broker. The ld. D.R. expressed his inability as the record does not show that any such opportunity was provided. In almost similar circumstances, Hon ble Calcutta High Court in the case of Eastern Commercial Enterprises (210 ITR 103) observed as under :- At the earlier occasion he claimed all his sales to be genuine but before the Assessing Officer in the case of the assessee, he disowned the sales specifically made to the assessee. This statement can at the worst show that S is not a trustworthy witness and little value can be attached to what he stated either in his affidavit or in his cross examination by the Assessing Officer. His conduct neutralizes his value as a witness. A man indulged in double speaking cannot be said by any means a truthful man at any stage and no court can decide on which occasion he was truthful. 12. Further, as noted, the statement was recorded by the DDI, Investigation Wing, Agra and not by the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the share market has also not shown such a rise. In my opinion, the share market is quite volatile and prices do fluctuate abnormally. It is seen that the shares dealt by the assessee were quoted at M.P. Stock Exchange at almost similar rates at which they were sold. The assessee is only a small shareholder of the company. He is not the director of the company or of the stock exchange. Under these circumstances how he can manipulate the prices is beyond one s comprehension. It is pertinent that the issue of abnormal increase in prices of the shares has come up for consideration before the ITAT, Agra Bench in the cases of Smt. Memo Devi (ITA No.396/Ag/2004 reported as 7 DTR 158) wherein the Co-ordinate Bench observed as under :- The assessee has no relation with the directors of the company and was in no way in the capacity to affect the market price of shares. The increase in share prices by more than 25 times too cannot be the basis to assume that the transaction was bogus. Abnormal fluctuation in share prices is a normal phenomena the learned counsel for the assessee filed a chart showing low and high prices of some quoted shares during the 52 weeks as per Economic Times ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities that everybody who has sold the shares at a high price has converted his unaccounted money through accommodation entries. This approach does not have any leg to stand. Hon ble Supreme Court in the case of Umacharan Shaw Bros vs. CIT, 37 ITR 271 (SC) has clearly laid down that suspicion howsoever strong cannot take place of proof. From the entire appreciation of evidence, I noted that Assessing Officer has failed to establish that the assessee has introduced his own unaccounted money in the shape of alleged sale proceeds of shares. Hon ble Supreme Court in the case of Kishan Chand Chellaram vs. CIT reported in 125 ITR 713 (SC) has observed that the amount cannot be assessed as undisclosed income of assessee in the absence of positive material brought by the Revenue to prove that the amount in fact belonged to assessee as the burden lay on the Revenue. 19. In almost similar circumstances the ITAT, Delhi C Bench in the case of ITO vs. Naveen Gupta (5 SOT 94), copy of which is placed by ld. A.R., has observed as under :- Nevertheless, it is also noteworthy that the A.O. has failed to establish that in lieu of the aforesaid sale proceeds, the assessee has surreptiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of shares in Delhi Stock Exchange being less or the transactions being not reported by Shri J.K. Jain to the stock exchange would not make a transaction bogus. The Jaipur Stock Exchange has intimated the AO that they are only having information of the transactions between two members of the stock exchange and not otherwise. In the present case, the transaction was between a member and a non-member and therefore, such transactions were not reported in the stock exchange. Further, the credit in the bank account of Shri J.K. Jain is by clearance. Therefore, the allegation of the AO that the amount was deposited in cash has no basis. The assessee has accepted having invested her funds on the advice of her father-in-law. The burden of proving a transaction is always on the person asserting it to be bogus and this burden has to be strictly discharged by adducing legal evidence of a character which would either directly prove the fact of bogusness or establish circumstances unerringly and reasonably raising an inference to that effect. 21. I have also gone through various other decisions on similar issue under the similar facts and I noted that this Tribunal had consistently acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition to declare the transactions of an acquaintance broker as bogus transactions neither any evidence has been led nor reasons advanced to support how he could be considered to be a reliable person so as to ignore the evidences available on record i.e. contract notes of sale and of the specific shares of specific rates on specific dates. Shri Praveen Mittal was the witness of the Department, the onus was therefore on the Department to produce him and make him available for cross-examination by the assessee. Similarly, the evidence that the companies were not in existence at the address available with the Department does not detract from the assessee s claim in view of the documents available on record. The discrepancy in the amounts to the expenditure of ₹ 53,356 was because of consistent statement by the assessee that the share broker made a short payment and disputed the remaining amount. The Department has thus proceeded entirely on suspicion and surmises if seen in the light of the orders of the Tribunal. The claim of the assessee in regard to the first issue is to be allowed. 23. Thus, in view of the aforesaid discussions, the decisions of the third member, the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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