TMI Blog2016 (3) TMI 1358X X X X Extracts X X X X X X X X Extracts X X X X ..... e and if the assessee offers no explanation about the nature and source of such credits, then, the some so credited may be charged to tax as income of the assessee. However, in the present case, the assessee has offered its explanation and if AO is still not satisfied with such explanation, onus shifts upon him to prove otherwise. The assessee s burden is confined to prove creditworthiness of the creditor with reference to the transaction found in the books of the assessee. In the present appeal, the identity of the creditor is not in doubt, the sale proceeds were received through banking channel, no adverse material was brought on record by the Assessing Officer to substantiate his presumption, the shares remained in the demat account o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 10 lakh for filing the appeal before the Tribunal. The CBDT issued instruction No.21 of 2015, dated 10/12/2015 (F No.279/Misc./142/2007-IT(PT), applicable with retrospective effect, wherein, the Department was advised/directed by the Board not to file appeal in the cases where the tax effect does not exceed the following monetary limit.:- Sl. No. Appeals in Income tax matters Monetary Limit (in Rs.) 1. Before ITAT 10,00,000/- 2. U/s 260 A before Hon ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a huge profit at the rate of 250 per share. The crux of the argument is that it was only a arranged affair and no actual purchase/sale was effected. Reliance was placed upon the decision in ITO vs Shamim M. Bharwani (2015) 170 TTJ 238 and Arvind M. Kariya vs ACIT (2013) 153 TTJ 422 (Mumbai Trib.). 3.2. On the other hand, ld. counsel for the assessee, asserted that on identical fact, the Department for A.Y. 2007-08 decided the issue in favour of the assessee and no appeal was filed by the Department against the order of the ld. First Appellate Authority. Our attention was invited to pages 113 to 124 of the paper book. Our attention was invited to various pages of the paper book to substantiate the claim of the assessee. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer on examination of submissions and return filed by the assessee, noticed that the assessee has claimed the capital gains amounting to ₹ 35,32,730/- as exempt, on the sale of shares of G.K. Consultants Ltd. The shares were claimed to be purchased from one Shri Rajendra Prakash Shah in June 2003. The assessee was asked to substantiate the purchases and payment made for such purchases. The claim of the assessee was that the shares were purchased in physical form and sold in de-mat form. However, the ld. Assessing Officer was of the view that the genuineness of the purchases/transactions is doubtful, therefore, it was held that the assessee engineered the transaction to generate artificial long term capital gain, thus, the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Ltd. through one broker Shri Prem Lal Roy for ₹ 58,680/- and the same were claimed to be sold during the year through stock exchange for ₹ 25,99,731/-, causing gain of ₹ 25,41,051/-. Those shares were also purchased in physical form and sold in de-mat form. The ld. Assessing Officer held the same to be non-genuine. Ultimately, the issue was decided in favour of the assessee. The assessee is relying upon this decision of the ld. Commissioner of Income Tax (Appeals). In the case of the assessee, the shares of M/s G.K. Consultants Ltd. were purchased through broker Shri Rajendra Prasad Shah. Admittedly, the company of which, the shares were purchased and the broker are different. However, there is no dispute that the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the finding of the ld. Commissioner of Income Tax (Appeals), thus, it was rightly held that the addition made u/s 68 of the Act cannot be sustained and also the resultant disallowance of commission at the rate of 5% made by the Assessing Officer. Even otherwise, for making addition u/s 68 of the Act, there has to be credit of amounts in the books of the assessee and if the assessee offers no explanation about the nature and source of such credits, then, the some so credited may be charged to tax as income of the assessee. However, in the present case, the assessee has offered its explanation and if the ld. Assessing Officer is still not satisfied with such explanation, onus shifts upon him to prove otherwise. The assessee s burden is confin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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