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TMI Blog2021 (5) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... 35,00,000/-? 2. Whether on the facts and circumstances of the case and in law, the CIT(A) was right in deciding the case when the verification of the facts are still in process? 3. On the facts and circumstances of the case and in law, the CIT(A) is justified in deleting the additions, in view of the Hon'ble Apex Court decision in the case of Kapoorchand Shirmal (1981) 131 ITR 452 (SC) that it is the duty of the appellate authority to correct the errors in the order of the authorities below and remit the matter for reconsideration unless prohibited by law?" 3. Brief facts are that the assessee is engaged in the business of share trading and derives income from long term and short term capital gains. The Assessing Officer received AIR information that the assessee entered into share transactions amounting to Rs.117,53,50,740/- through Bombay Stock Exchange Limited during the relevant Financial Year 2008-09. The Assessing Officer required the assessee to explain the source of funds invested in the above share transactions. The assessee replied vide letter dated 01.12.2011 that during the Financial Year 2008-09 the assessee opened a trading account with M/s Emkay Global Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegedly transacting in that broker account is totally denied. It was explained that there is no signature of the assessee on that document. The CIT(A) also noted the complaint filed by the assessee against share broker Emkay Global Financial Services Ltd. with BSE, NSE, SEBI and stated the facts on oath in affidavit also in the copy of demat account of the assessee, it is clearly mentioned that the alleged transactions of the deposit of Rs.3.35 crores in the ledger account of assessee mentioned with Emkay Global Financial Services Ltd. from the alleged bank account of Sate Bank of Patiala does not pertain to the assessee and hence, he deleted the addition. Aggrieved, Revenue came in appeal before Tribunal. 5. We have heard rival contentions and gone through the facts and circumstances of the case. Before us, the learned Counsel for the assessee placed vital facts stating that on page 16, the ledger account of assessee with MK Share and Stock brokers Ltd. starts from 19.06.2008, wherein first debit entry of Rs.2,90,268.28, whereas actually the assessee on that very date i.e. 19.06.2008 closed the account and relevant letter written by Emkay Global Financial Services Ltd. to asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 119567 Emkay Share and Stock Brokers Ltd. SBP- Mumbai (Service Branch) Dorment Instruction Date of issue Amount Applicant Name Applicant Address Applicant Account No Beneficiary Name Payable Branch MDD/AD 203993 21.06.2008 50.00 lacs Anand Corporation 131/3, Kabutar Kahna, Chokla Bazar, Kalupur, Ahmedabad 65009840641 Emkay Share and Stock Brokers Ltd. SBP- Mumbai (Service Branch) MDD/AD 203995 21.06.2008 50.00 lacs Anand Corporation 131/3, Kabutar Kahna, Chokla Bazar, Kalupur, Ahmedabad 65009840641 Emkay Share and Stock Brokers Ltd. SBP- Mumbai (Service Branch) MDD/AD 203996 21.06.2008 50.00 lacs Anand Corporation 131/3, Kabutar Kahna, Chokla Bazar, Kalupur, Ahmedabad 65009840641 Emkay Share and Stock Brokers Ltd. SBP- Mumbai (Service Branch) MDD/AD 203994 21.06.2008 50.00 lacs Anand Corporation 131/3, Kabutar Kahna, Chokla Bazar, Kalupur, Ahmedabad 65009840641 Emkay Share and Stock Brokers Ltd. SBP- Mumbai (Service Branch) MDD/AD 204098 26.06.2008 50.00 lacs Anand Corporation 119/2, Kabutar Kahna, Chokla Bazar, Kalupur, Ahmedabad 65038119567 Emkay Share and Stock Brokers Ltd. SBP- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the letter from the broker to the BSE, it has been confirmed that payments in assessee's account has been received from Mr. Mahesh C Shah. Even, as per the Memorandum Of Understanding (MOU), which is signed between MK Shares and Stock brokers Ltd. and also Mahesh C Shah and his family, the outstanding liability of the assessee has been taken by Mr. Mahesh C Shah and this MOU is never signed by the assessee. It is also submitted that police complaint was filed against the said broker for unauthorized trade carried out towards assessee's account and misusing his name. In view of the above facts, now inadvertent facts are noted as under: - i) Assessee had transactions with two brokers in regular course viz. Nirmal Bang and Arihant Capital. The third account with Emkay Share was opened on 17.06.2018, requested closure in writing on 18.06.2018, received intimation about closure in writing on 19.06.2018. ii) AO based his assessment on AIR information inspite of-flat denial by assessee. iii) No evidence of alleged telephonic instruction with AO/broker 'not' to close alleged account. 11 a letter could be sent for closure it could have been sent for non-closure. Broker is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us interest of the concerned parties. xviii) The AG has expressed his surprise as to the number of share broking accounts which have been opened by the assessee. But the number of account any person chooses to open and transact in is purely within his discretion and how that can have any tax implications escapes my understanding completely. xix) The AO has also not been able to controvert the defining evidence of the alleged transactions not appearing in the Demat account of the assessee. xx) the learned and AO has not been able to comprehend the implications of total defiance of all logic in the so-called transfer of alleged liability of assessee to Mahesh C Shah. There is no evidence of anyone asking the broker to do these transfers and it is completely the ipse dixit of the broker which has swayed the AO. xxi) The six issues which have been raised by the assessee in his letter dated 9/5/12 (paragraph 4 page 8, onwards supra) addressed to the AO remain unanswered and are unchallenged. xxii) There is no proof of conversation between the assessee and the broker which allegedly precluded the broker from closing the account on 191h of June 2008. Even if this conversation we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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