TMI Blog2018 (11) TMI 1626X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be foundation for assessment. Assessee in good faith has purchased the shares of M/s.BPL from a sub-broker in his friends circle. What is the true nature of the transaction? From whom did the assessee actually purchase the shares? Did the assessee take possession of the shares in its physical form? - the assessee is an investor and has been regularly trading in shares. If this is so, does the demat account show such transactions being done by the assessee or is this the only one of transaction. Thus, clearly the facts required for adjudicating the appeals are not forthcoming - we are of the view that the issues in this appeal must be restored to the file of the AO for re-adjudication after granting the assessee adequate opportuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, the issue in this appeal can also be restored to the file of ld. Assessing Officer. 5. I have considered the rival submissions. A perusal of assessee's case shows that it is similar to the facts in the case of Shri Heerachand Kanunga referred to supra. Consequently as we have already held in the case of Shri Heerachand Kanunga referred to supra, as follows:- 9. A perusal of the facts in the present case admittedly given room for suspicion. However, assessments are not to be done on the basis of mere suspicion. It has to be supported by facts and the facts are unfortunately not forthcoming in the Assessment Order, in the order of the Ld.CIT(A) nor from the side of the assessee. The main foundation of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 2011-12? When were the cheques received by the assessee? From whom did the assessee received the cheques? Was there any cash deposit immediately prior to the issuing of the cheque from the bank account of the purchaser of the shares of the assessee? 11. A perusal of the Assessment Order at Para No.7.1 shows that in the Written Submissions, the assessee states that he has purchased 15000 shares of M/s.BPL from M/s.ABPL, Kolkata. However, in Para No.8.3, it is mentioned that the assessee in good faith has purchased the shares of M/s.BPL from a sub-broker in his friends circle. What is the true nature of the transaction? From whom did the assessee actually purchase the shares? Did the assessee take possession of the shares in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der nor the order of the Ld.CIT(A) nor from the side of the assessee, we are of the view that the issues in this appeal must be restored to the file of the AO for re-adjudication after granting the assessee adequate opportunity to substantiate its case and we do so. 12.The statement recorded by the Revenue from Shri Ashok Kumar Kayan cannot be used as an evidence against the assessee in so far as the statement has not been given to the assessee nor has Shri Ashok Kumar Kayan been provided to the assessee for cross-examination. However, the assessee shall prove the transaction of the Long Term Capital Gains in respect of which the assessee has claimed the exemption u/s.10(38) by providing all such evidences as required by the AO to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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