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TMI Blog2016 (3) TMI 1358X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year 2009-10 (ITA No.4078/Mum/2013). 2. During hearing, the ld. counsel for the assessee, Shri K. Shivaram, at the outset, claimed that the tax effect in the present appeal of the Revenue is Rs. 8,08,753/-. The assessee also filed calculation of the tax effect. The ld. DR, Shri Suresh Kumar, fairly agreed to the fact that the tax effect in the present appeal is below prescribed monetary limit. 2.1. We have considered the rival submissions and perused the material available on record. It is noted that the tax effect in the present appeal is below prescribed monetary limit of Rs. 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn of income for A.Y. 2004-05 was filed on 22/03/2005. It was claimed that shares were sent for dematisation in April 2005. It was contended that the purchase rate was from 3.25 to 4.27 and sold in June 2005 at 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. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s 143(2) r.w.s. 153A on 31/12/2007 and 4 years have not elapsed from the end of the relevant assessment year, assessment is being re-opened." 3.4. The Assessing Officer on examination of submissions and return filed by the assessee, noticed that the assessee has claimed the capital gains amounting to Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dentical issue, the ld. Commissioner (Appeals), wherein, the assessee claimed to have purchased 9000 shares on 29/09/2004 of Oasis Sine Communication Ltd. through one broker Shri Prem Lal Roy for Rs. 58,680/- and the same were claimed to be sold during the year through stock exchange for Rs. 25,99,731/-, causing gain of Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f earlier years were not doubted. Dematting was done by the assessee, sale was affected, thus, there is no reason to interfere with 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. Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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