TMI Blog2009 (1) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial document. Simply by arguing it to be a case of manipulation the Revenue is not supposed to succeed in their contention without proper evidence. we allow the assessee's second appeal. - Member(s) : G. D. AGARWAL., N. L. DASH. ORDER-N.L. DASH, J.M.: Aggrieved with the order of the learned CIT(A)-Siliguri, the assessee has come in second appeal before the Bench. 2. There are six grounds filed by the assessee appellant which are as follows: "I. That on the facts and in the circumstances of the case, the learned AD and CIT(A) both erred in having invoked provisions of s. 68 on wrong interpretation of facts and more on suspicion disregarding the evidences filed and without bringing on record any evidence in support of their suspicion that bogus share transactions were recorded to avail of exemption under s. 54F. 2. That the learned CIT(A) erred in having treated the capital gain of Rs. 9,68,972 as assessee's unexplained cash credit under s. 68 when, in fact purchase and sale of shares through registered brokers of CSE were through bank, entries have been reflected in the books of account and the brokers have confirmed the transactions and hence such action o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions vide para 2.4 of his written submissions as follows: ----------------------------------------------------------------- S. Client ID Date of Settlement Contract note No. Order No. No. purchase/sale No. ----------------------------------------------------------------- 1. 10005956 11/04/2001 (P) 2002103 3/021070 N/A ----------------------------------------------------------------- 2. A979 31/10/2002 (S) 2003450 R-20021031/004 98254310 ----------------------------------------------------------------- 3. A979 20/09/2002 (S) 2003425 R-20020920/010 542444553 572042607 542445286 572043606 ----------------------------------------------------------------- 4. A979 19/09/2002 (S) 2003424 R-20020919/008 452188320 512649557 ----------------------------------------------------------------- 4.1 Further he has submitted that all the required documents like copies purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the trades in question were done through the trading system of the exchange or not. The answer of the assessee to these deficiencies and irregularities is that he could not be held responsible for the same. It was not the assessee but the three Kolkata brokers who were members of the CSE...... The AO does not have support from the special auditors, CSE or any other quarter to that effect whereas the assessee has relied upon cogent evidence and material. We hold that the AO has acted upon grossly inadequate materials and his conclusions are in the realm of suspicion, conjectures and surmises......." 4.3 Further vide para 2.10, the learned Authorised Representative has contended that as far as the allegation that the de-mat account statement date of credit of shares of Questfin is 13th Aug., 2002 and the date of debit for the same shares is 9th March, 2005, it is submitted that the purchase of shares could be de-mated after some time as the de-mat account particulars of the appellant were not available in the records of the share broker at the relevant point of time. The delay of delivery of shares was on the appellant's part which M/s Bubna Stock Broking Services Ltd. accommod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctional High Court has held as under: "Once tl1e assessee has furnished the name of the company, number of shares purchased, date of sale, amount of purchase money, amount of sale money, etc. the assessee had discharged its initial burden and if the broker did not maintain any accounts, the transaction could not be doubted for no fault of the assessee. Once the assessee had discharged its initial burden, no investigation or proper steps had been taken by the ITO to bring on record the materials to controvert the claim of the assessee." 4.6 He also placed reliance on another case of the Tribunal, Kolkata Bench in ITA Nos. 1678 and 1679/Kol/2004 for asst. yr. 2001-02 in the case of Anup Kumar Jayaswal where the Kolkata Bench has held as under: "The, fact remains that at no point of time the assessee had an opportunity to interact with the share issuing company as the assessee had not purchased shares directly from the company and that the alleged denial by the share issuing company about the transfer of the shares is better known to them and not to the assessee. As far as the assessee is concerned, the transaction of purchase and sale of 20,000 shares through the registered bro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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