TMI Blog2016 (2) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to order under section 143(3) wherein the issue was restored to the AO. It may be noted that the assessee could not prove the purchases of penny stock shares of M/s Shalimar Agro Ltd. and M/s G.Tech Info Training Ltd., however, assessee submitted before us that the entire purchase and sale of shares are fully supported by necessary documents/evidences. Therefore, we also restore the issue to the file of AO to avoid the conflicting assessment order in respect of same AY and direct the AO to verify and examine the actual date of purchase in both the cases and thereby to determine the short term capital gains or long term capital gains, or it may be added in income of the assessee u/s 68 on the basis of the alleged incriminating material found during the search as the case may be, and pass fresh assessment order after giving opportunity of being heard to the assessee and decide the same in accordance with law. - Appeal of assessee is allowed for statistical purposes. - ITA No.7024/Mum/2010 - - - Dated:- 17-2-2016 - SHRI R.C.SHARMA, AM SHRI PAWAN SINGH, JM For The Assessee : Shri B.V.Jhaveri For The Revenue : Shri V.V.Narsimhacharya ORDER PER PAWAN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side the order of the Tribunal dated 18.10.2013 and direct the tribunal to recall its order dated 30.01.2013 and thereafter fix the appeal for final hearing. It is made clear that we have not opined on the merits of the controversy. All the contentions of the revenue and the petitioner are left open to be urged before the Tribunal. The Tribunal shall decide the matter without being influenced, in any manner, by any observations made by us in this order. 10. Accordingly, petition allowed. No order as to costs. 2. As per the direction of Ho nble High Court, the present appeal is fixed for rehearing before us and respectfully following the direction of High Court, we first of all direct to recall the order dated 31/01/2013 passed in the present appeal. 3. The brief facts of the case are that the assessee is an individual belonging to Kariya Group of cases and has disclosed income under the head salary, investment and income from house property etc, while filing the return of income for AY 2004-05, on 30/10/2007, and after scrutiny the order under section 143(3) was passed on 27/12/2006. In the assessment order u/s 143(3) addition of ₹ 45,55,979/- u/s 68 was mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share were transferred in the name of assessee on 30/04/2002 and the transaction of purchased took place during the year 2002-03 relevant to the assessment year 2003-04. However the relevant record was not made available before the AO to verify the veracity of the said letter dated 30/04/2002 of confirmation. Therefore , even if it is presumed that the share were purchased during the year 2002-03 the actual date of transaction has to be established specifically when the assessee has purchased the share through the firm in which he is partner and did not make any payment. The person from whom the shares were purchased was also not produced. Even no entry except showing the transaction in the final account has produced to establish the actual date of purchase of shares. Accordingly the matter require proper verification and examination with respect to the actual date of purchase so that the nature of the capital gain (short or long term) can be computed. Accordingly , we remit the issue of capital gain arising out of the purchase and sale of shares of M/s Shalimar Agro Ltd to the record of AO. The issue of exemption u/s 54F is consequential one, therefore, the same is also require to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tech Info Training ltd. are fully supported by contract notes. The sales transactions have been routed through demat account of the assessee. Therefore, the presumption of the lower authorities that the entire transaction of purchase of shares is bogus is without any basis. Ld. AR further submitted that just because the purchase transactions have been done off market and the delivery of shares have been taken in physical form cannot justify the allegation that the purchases are bogus or have been backdated. It was also the contention of ld. AR that the AO never confronted the assessee with the denial of the broker Shri Sanjay R. Shah who stated that he has not entered into any transaction with the assessee or his family members. Further ld. AR pointed out that the entire sale transaction of shares of these two companies have been done through BSE, therefore, there should not be any doubt in relation to the sale consideration resulted from the sale of shares of these two companies. He further submitted that since the entire purchase and sale of shares are fully supported by necessary documents/evidences, therefore, the additions made by the AO and confirmed by the CIT(A) deserves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th January, 2013 and directed to rehear the appeal. 11. The department has not challenged the order of the Tribunal dated 20-10-2010, passed in ITA No.5670/Mum/2008 before the High Court, the said order has become final,with regard to order under section 143(3) wherein the issue was restored to the AO. It may be noted that the assessee could not prove the purchases of penny stock shares of M/s Shalimar Agro Ltd. and M/s G.Tech Info Training Ltd., however, ld.AR of the assessee submitted before us that the entire purchase and sale of shares are fully supported by necessary documents/evidences. 12. Therefore, we also dim it appropriate to restore the issue to the file of AO to avoid the conflicting assessment order in respect of same AY and direct the AO to verify and examine the actual date of purchase in both the cases and thereby to determine the short term capital gains or long term capital gains, or it may be added in income of the assessee u/s 68 on the basis of the alleged incriminating material found during the search as the case may be, and pass fresh assessment order after giving opportunity of being heard to the assessee and decide the same in accordance with law. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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