TMI Blog2023 (7) TMI 1393X X X X Extracts X X X X X X X X Extracts X X X X ..... rigging. The AO has placed reliance on the report of Investigation wing to hold that the assessee has availed accommodation entries by way of long term capital gains. We are of the view that the decision rendered in the case of Shyam R Pawar [ 2014 (12) TMI 977 - BOMBAY HIGH COURT] and Ziauddin A Siddique [ 2022 (3) TMI 1437 - BOMBAY HIGH COURT] are squarely applicable in the present case. Accordingly, we hold that the long term capital gains declared by the assessee cannot be doubted with. Accordingly, we hold that the AO was not justified in assessing the sale value of shares as unexplained cash credit in both the years under consideration. Decided in favour of assessee. - SHRI B.R. BASKARAN (AM) SHRI NARENDER KUMAR CHOUDHRY (JM) For the Appellant : Shri Bhupendra Shah, CA For the Respondent : Shri Naganath B. Pasale ORDER PER B.R.BASKARAN (AM) :- Both the appeals filed by the Revenue are directed against the orders passed by the learned CIT(A)-45, Mumbai and they relate to A.Y. 2011-12 and 2012-13. The Revenue is aggrieved by the decision of the learned CIT(A) in deleting the additions made u/s 68 of the Act, which related to the sale proceeds of sale of shares. Both the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transactions of purchase and sale of shares were carried out on recognized stock exchange Sanjay Mahabir Maheshka through registered broker. Further purchase and sale of shares have been carried out through the Demat Account of the assessee. Accordingly he agreed with the submissions of the assessee that there was no reason to suspect the genuineness of the transactions. The learned CIT(A) further placed reliance on the following case laws :- ITO Vs. Indravadan Jain (HUF) (ITA No. 4861/Mum/2014) (Mum-Tri) CIT Vs. Orchid Industries Ltd. (ITA No. 1433 of 2014) (Bom HC) M/s. Farah Marker Vs. ITO (ITA No. 3801/Mum/2011)(Mum-Tri) Mukesh B. Sharma Vs. ITO (ITA No. 6249/Mum/2018)(Mum-Tri) Accordingly, the learned CIT(A) deleted the additions in both the years under consideration. Aggrieved by the orders passed by the learned CIT(A), the Revenue has filed these appeals before us. 6. We heard the parties and perused the record. There is no dispute with regard to the facts that the assessee has purchased the shares through a broker by paying the consideration in cheque. The said shares were split and were sold through a broker in a recognized stock exchange. The said shares have been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appeal of the Assessee has been rightly allowed. The Tribunal has not merely interfered with the concurrent orders because another view was possible. It interfered because it was required to interfere with them as the Commissioner and the Assessing Officer failed to note some relevant and germane material. In these circumstances, he submits that the Appeals do not raise any substantial question of law and deserve to be dismissed. 5. We have perused the concurrent findings and on which heavy reliance is placed by Mr.Sureshkumar. While it is true that the Commissioner extensively referred to the correspondence and the contents of the report of the Investigation carried out in paras 20, 20.1, 20.2 and 21 of his order, what was important and vital for the purpose of the present case was whether the transactions in shares were genuine or sham and bogus. If the purchase and sale of shares are reflected in the Assessee's DMAT account, yet they are termed as arranged transactions and projected to be real, then, such conclusion which has been reached by the Commissioner and the Assessing Officer required a deeper scrutiny. It was also revealed during the course of inquiry by the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut by the Calcutta Stock Exchange regarding client Code has been referred to. But the Tribunal concluded that itself, is not enough to prove that the transactions in the impugned shares were bogus/sham. The details received from Stock Exchange have been relied upon and for the purposes of faulting the Revenue in failing to discharge the basic onus. If the Tribunal proceeds on this line and concluded that inquiry was not carried forward and with a view to discharge the initial or basic onus, then such conclusion of the Tribunal cannot be termed as perverse. The conclusions as recorded in para 12 of the Tribunal's order are not vitiated by any error of law apparent on the face of the record either. 7. As a result of the above discussion, we do not find any substance in the contention of Mr.Sureshkumar that the Tribunal misdirected itself and in law. We hold that the Appeals do not raise any substantial question of law. They are accordingly dismissed. There would no order as to costs. 8. Even the additional question cannot be said to be substantial question of law, because it arises in the context of same transactions, dealings, same investigation and same charge or allegation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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