Shri Ambalalbhai Lalbhai Patel, Ahmedabad V. The Income Tax Officer, Ward-1(3)(1), Ahmedabad

ITA 1313/AHD/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7742 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 30-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Share purchase agreement; Opportunity of being heard; Principle of natural justice; Additional evidence; Cost of acquisition; Set aside; Capital Gains
• Section: 133(6); 250; 201; 147; 6; 144

Judgement Text

PAGE 1 OF 10 , IN THE INCOME TAX APPELLATE TRIBUNAL , SM C BENCH, AHMEDABAD BEFORE , SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS MADHUMITA ROY , JUDICIAL MEMBER ./ ITA NO .1313 /AHD/2017 / ASSTT. YEAR : 2011 - 2012 AMBALALBHAI LALBHAI PATEL, 4, SHIVNAGAR SOCIETY, NR. MAHATMA PARK , NEW VADAJ , AHMEDABAD - 380013 . PAN: AAWPP5828R VS . INCOME TAX OFFICER , WARD - 1(3 ) (1 ) , AHMEDABAD . (APPLICANT) ( RESPON D ENT ) ASSESSEE BY : SHRI ASEEM L. THAKKAR , A.R REVENUE BY : SHRI JAYANT JHAVERI , SR . DR / DATE OF HEARING : 15 / 07 / 201 9 / DATE OF PRONOUNCEMENT: 14 /10 /2 01 9 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE AS SESSEE AGAINST THE ORDER OF THE LEARNED COMMISS IONER OF INCOME TAX (APPEALS) - 10 , AHMEDABAD [ LD. CIT (A) IN SHORT] , DATED 21 / 03 / 2017 ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S. 147 R.W.S . 144 OF THE INCOME TAX ACT, 1961 ( HERE - IN - AFTER REFERRED TO AS 'THE ACT') DATED 16 / 06 / 201 7 RELEVANT TO ASSESSMENT YEAR (AY) 2011 - 12 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: ITA NO .1313 / AHD/2017 ASSTT. YEAR 2011 - 12 PAGE 2 OF 10 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN PASSING EX - PARTE ORDER U/S.147 R.W.S.144 OF THE I .T. ACT, 1961 WITHOUT PROVIDING APPELLANT AN EFFECTIVE OPPORTUNITY OF BEING HEARD WHICH IS AGAI NST THE LAW OF NATURAL JUSTICE HENCE THE ORDER PASSED SHOULD BE SET ASIDE AND FRESH ORDER SHOULD BE PASSED AFTER HEARING THE APPELLANT. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN REOPENING THE ASSESSMENT U/S.148 OF THE ACT BEFORE THE TIME FOR ORIGINAL ASSESSMENT GETTING TIME BARRED U/S.153 OF THE I. T. ACT, 1961. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMIN G THE DISALLOWANCE OF RS.5000/ - PAID BY THE APPE LLANT FOR THE SHARE CERTIFICATE OF THE PROPERTY AND DIRECTING THE ASSESSING OFFICER TO RE - COMPUTE THE CAPITAL GAINS OF THE APPELLANT BY ADOPTING THE COST OF ACQUISITION AT RS.1,91,000/ - . 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIR MING THE ADDITION OF RS.5,65,185/ - MADE BY THE ASSESSING OFFICER FOR THE ALLEGED SHORT TERM CAPITAL GAIN FROM DEALINGS IN SHARES. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR MODIFY ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING OF AP PEAL. 2. A T THE OUTSET THE LEARNED AR FOR THE ASSESSEE SUBMIT TED THAT HE HAS BEEN IS INSTRUCTED BY THE ASSESSEE NOT TO PRESS GROUND NO. 1 AND 2, THEREFORE WE DISMISS THE SAME AS NOT PRESSED. THE 2 ND ISSUE RAISED BY THE ASSESS EE IS THAT THE LEARNED CIT (A) E R RED IN CONFIRMING THE DISALLOWANCE TO THE EXTENT OF 5000 .00 PAID FOR THE SHARE CERTIFICATE OF THE PROPERTY . 3. B RIEFLY STATED FACTS ARE THAT THE ASSESSING IS AN INDIVIDUAL WHO HAS SOLD A PROPERTY IN THE YEAR UNDER CONSIDERATIO N FOR RS.7, 11,000 / - V IDE REGISTRA TION NO. 13604 DATED 18/10/ 2010. THE AO FOUND THAT THE STAM P VALUE OF SUCH PROPERTY IS OF RS. 19 ,50, 760 / - AS CONFIRMED IN RESPONSE TO THE NOTICE ISSUED ITA NO .1313 / AHD/2017 ASSTT. YEAR 2011 - 12 PAGE 3 OF 10 UNDER SECTION 133( 6 ) OF THE ACT. THE AO REQUIRED THE ASSESSEE TO FURNISH THE DETAILS OF TH E COST OF ACQUISITION OF SUCH PROPERTY. BUT THE ASSESSEE FAILED TO DO SO. THEREFORE THE AO IN THE ABSENCE OF ANY INFORMATION , TREATED THE ENTIRE AMOUNT OF SALE CONSID ERATION AS INCOME AMOUNTING TO RS.19,50,76 0 / - ONLY. THEREFORE THE SAID AMOUNT WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARNED CIT (A) . T HE ASSESSEE BEFORE THE LEARNED CIT (A) FILED THE ADDITIONAL DOCUMENTS BY SUBMITTING THAT HE HAS ACQUIRED THE IMPUGNED PROPERTY WORTH OF RS.1,99,000/ - ONLY . BESIDES THE ABOVE THE ASSESSEE ALSO CLAIMED THAT HE HAS ALSO INCURRED A SUM OF RS. 5000 / - TOWARDS SHARE CERTIFICATE ISSUED BY THE SOCIETY NAMELY OM DHARAMJIVAN ASSOCIATION AKASH AP AR T MENT . 5. THE LEARNED CIT (A) AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND REMAND REPORT OF THE AO ACCEPTED THE COST OF ACQUISI TION OF THE PROPERTY FOR RS. 1 9 9 ,000 / - . HOWEVER, THE LEARNED CIT (A) CONFIRMED THE ADDITION OF RS. 5000 / - IN THE ABSENCE OF SUFFICIENT DOCUMENT DOCUMENTARY EVIDENCE SUGGESTING THAT THE ASSES SEE HAS INCURRED AN EXPENSE OF R. 5000 OVER AND ABOVE THE COST OF ACQUISITION OF THE PROPERTY. HENCE THE GROUND OF APPEAL OF THE ASSESSEE WAS PARTLY ALLOWED. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A), THE ASSESSEE IS IN APPEAL BEFORE US. 6. THE LEARNED AR BEFORE US FILED A PAPER BOOK RUNNING FROM PAGES 1 TO 30 AND DREW OUR ATTENTION ON PAGE 6 OF THE PAPER BOOK WHERE THE COPY OF THE SHARE CERTIFICATE WAS ATTACHED. ACCORDINGLY THE LEARNED AR CLAIMED THAT THE ITA NO .1313 / AHD/2017 ASSTT. YEAR 2011 - 12 PAGE 4 OF 10 ASSESSEE HAS INCURRED AN EXPENSE OF RS. 5000 IN CONNECTION WITH SUCH PROPERTY. THEREFORE THE SAME SHOULD BE ALLOWED AS DEDUCTION. 7. ON THE OTHER HAND THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE INSTANT CASE RELATES WHETHER THE ASSESSEE HAS INCURRED AN EXPENSE OF 5000 BY WAY OF SHARE CERTIFICATE OBTAINED FROM THE SOCIETY NAMELY OM DHARAM JIVAN ASSOCIATION WHERE THE ASSESSEE WAS HOLDING P ROPERTY. AS PER THE ASSESSEE, HE HAS INCURRED AN EXPENSE OF 5000 IN CONNECTION WITH THE IMPUGNED PROPERTY. THEREFORE HE SHOULD BE ALLOWED DEDUCTION FOR THE SAME. HOWEVER THE AO, FOUND THAT THERE IS NO EVIDENCE SUGGESTING THAT THE ASSESSEE HAS INCURRED 50 00 IN CONNECTION WITH SUCH IMPUGNED PROPERTY. THE VIEW TAKEN BY THE AO WAS SUBSEQUENTLY CONFIRMED BY THE LEARNED CIT (A). 8.1 HOWEVER, FROM THE PRECEDING DISCUSSION WE NOTE THAT THE ASSESSEE HAS FILED A SHARE CERTIFICATE OF 5000 ISSUED BY OM DHARAM JIVA N ASSOCIATION WHERE THE ASSESSEE WAS IN POSSESSION OF THE PROPERTY. TO VERIFY THE VERACITY OF SUCH CERTIFICATE, A NOTICE WAS ISSUED BY THE AO UNDER SECTION 133 ( 6 ) OF THE ACT BUT THERE WAS NO SATISFACTORY REPLY FROM SUCH SOCIETY. 8.2 IN OUR CONSIDERED VI EW THE CLAIM OF THE ASSESSEE DOES NOT DEPEND UPON THE CONFIRMATION FROM THE THIRD PARTY. THE ASSESSEE AS SUCH HAS FURNISHED SHARE CERTIFICATE WHICH IS PRIMARY DOCU MENT MENTIONING THE PAYMENT OF RS. 5000.00. THIS FACT HAS NOT BEEN DOUBTED BY THE AUTHORITIES BELOW. THEREFORE, IN OUR CONSIDERED VIEW IN THE ABSENCE OF THE CONFIRMATION FROM THE ITA NO .1313 / AHD/2017 ASSTT. YEAR 2011 - 12 PAGE 5 OF 10 3 RD PARTY THE ASSESSEE IS NOT DISENTITLED FOR CLAIMING THE DEDUCTION OF THE IMPUGNED EXPENDITURE. 8.3 WE ALSO NOTE THAT THE CERTIFICATE ISSUED BY THE SOCIETY, OM DHARAM JIVAN ASSOCIATION, H AS DIRECT NEXUSES WITH THE PROPERTY HELD BY THE ASSESSEE. THIS SHARE CERTIFICATE HAS NO INDEPENDENT VALUE IN ITS SELF. THIS SHARE CERTIFICATE IS TRANSFERABLE ONLY ALONG WITH THE PROPERTY IN DISPUTE. THEREFORE, THE COST INCURRED ON SUCH SHARE CERTIFICATE CAN BE TREATED AS PART OF THE COST OF THE PROPERTY. 8.4 IT IS ALSO UNDISPUTED FACT THAT THE ASSESSEE WAS HOLDING A PROPERTY IN THE SOCIETY OM DHARAM JIVAN ASSOCIATION AND THIS FACT WAS ALSO ADMITTED BY THE AO IN HIS REMAND REPORT. THERE FORE IN OUR CONSIDERED VIEW THE SHARE CERTIFICATE ISSUED BY THE SOCIETY, OM DHARAM JIVAN ASSOCIATION, CANNOT BE DOUBTED BEING CLOSELY CONNECTED WITH THE IMPUGNED PROPERTY. 8.5 HENCE, WE SET ASIDE THE ORDER OF THE LEARNED CIT (A) AND DIRECT THE AO ALLOW T HE CLAIM TO THE ASSESSEE AS DISCUSSED ABOVE. THUS THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. THE NEXT GROUND OF APPEAL OF THE ASSESSEE IS THAT THE LEARNED CIT (A) ERRED IN UPHOLDING T HE ADDITION MADE BY THE AO FOR RS. 5, 65 , 185 / - ON ACCOUNT OF SHORT - TERM CAPITAL GAIN. 9. THE AO DURING THE ASSESSMENT PROCEEDINGS, ON THE BASIS OF INFORMATION RECEIVED FROM BOMBAY STOCK EXCHANGE LTD, NOTICED THAT THE ASS ESSEE HAS SOLD SHARES WORTH OF RS. 5 ,65,185/ - DATED 17/03/2011 OF L & T COMPANY. THE AO REQUIRED THE ASSESSEE TO FURNISH THE COST OF ACQUISITION OF SUCH SHARES. BUT THE ITA NO .1313 / AHD/2017 ASSTT. YEAR 2011 - 12 PAGE 6 OF 10 ASSESSEE FAILED TO DO SO. THEREFORE THE AO TREATED THE ENTIRE AMOUNT OF SALE CONSIDERATION OF RS.5, 65 , 185 / - AS INCOME UNDER THE HEAD SHORT - TERM CAPITAL GAI N AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARNED CIT (A). 9.1 THE ASSESSEE BEFORE THE LEARNED CIT (A) SUBMITTED THAT IT HAS CONDUCTED THE TRANSACTIONS FOR THE SALE PURCHASE OF SHARES WITH RESPECT TO 6 SCRIPTS THROUGH A BROKER NAMELY RAJ V EE SHARE BROKING LTD AND EARNED A PROFIT OF RS.2,250/ - OUT OF THE SHARE TRADING BUSINESS. 9.2 THE ASSESSEE ALSO CLAIMED THAT THE SAL E PRICE OF THE SHARES OF L & T CANNOT BE TREATED AS INCOME OF THE ASSESSEE. ACCORDI NGLY THE ASSESSEE CLAIMED THAT THE PROFIT AT THE MOST OF RS. 2 , 250 / - CAN BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 9.3 THE AO IN THE REMAND REPORT SUBMITTED THAT THE ASSESSEE HAS MADE TRANS ACTIONS IN THE SHARES OF L & T DURING THE YEAR WHICH RESULTED LOSS OF RS. 6 74 / - BUT THE SAME WAS NOT SHOWN IN THE INCOME TAX RETURN. THE AO ALSO SUBMITTED THAT THE ASSESSEE HAS FURNISHED THE BANK STATEMENT FOR THE VERIFICATION AND THE CONFIRMATION FROM THE BROKER NAMELY RAJ V EE SHARE BROKING LTD. 9.4 HOWEVER , THE AO IN THE REMAND REPORT ALSO SUBMITTED THAT THE ASSESSEE HAS NOT FURNISHED THE CONFIRMATION FROM THE PRADEEP E NTERPRISES LTD. 9.5 THE ASSESSEE IN HIS REJOINDER SUBMITTED THAT HE HAD NO DEALING WITH M/S PRADEEP E NTERPRISES LTD. ITA NO .1313 / AHD/2017 ASSTT. YEAR 2011 - 12 PAGE 7 OF 10 9.6 THE LEARNED CIT (A) AFTER CONSIDERING THE SUBMISSION AND THE REMAND REPORT HAS CONFIRMED THE ORDER OF THE AO BY OBSERVING AS UNDER: 6.3 DECISION IT HAS CLEARLY BEEN STATED BY THE AO THAT THE APPELLANT HAS NOT DISCLOSED THE SHARE TRANSACTIONS ENTERED INTO BY HIM IN THE RETURN OF INCOME AT ALL DURING THE YEAR. THERE IS A CLEAR DEFAULT ON THE PART OF THE APPELLANT BY NOT SHOWING THESE TRANSACTIONS I N THE RETURN OF INCOME. THEREFORE, ALL THESE TRANSACTIONS ARE UNDISCLOSED TRANSACTIONS OF THE APPELLANT. IT IS ONLY BECAUSE OF THE FACT THAT INFORMATION WAS RECEIVED BY THE APPELLANT FROM BOMBAY STOCK EXCHANGE ABOUT THE SALE OF SHARE S OF L & T TO THE EXTENT OF RS. 5,65,185/ - ON 17/3/2011. THE APPELLANT HAS GIVEN THE REPLY VIDE LETTER DATED 19/1/17 IN WHICH IT HAS BEEN MENTIONED THAT HE IS TRADED IN THE SHARES OF SIX COMPANIES WHICH ARE I. CAIRN INDIA II. KOTAK BANK HI. L&T IV. LI C HOUSING FINANCE V. REL IANCE COM VI. TATA STEEL IT HAS FURTHER BEEN MENTIONED BY THE APPELLANT THAT HE HAS EARNED PROFIT OF RS.2,250/ - FROM INTRA DAY TRADING. WHEN THE MATTER WAS SENT FOR REMAND REPORT THE A.O HAS CALLED FOR INFORMATION U/S.!33(6) OF THE L.T. ACT. THE STOCK BROKER M/S. RAJVI STOCK BROKING HAS SENT THE STATEMENT OF ACCOUNT OF T HE APPELLANT FROM 01/04/2010 TO31/03/201 L. ON A PERUSAL OF THE SAME IT IS NOTICED THAT THE APPELLANT HAS ENTERED INTO LOT OF TRANSACTIONS EVEN OTHER THAN THE ONES WHI CH HAVE BEEN DISCLOSED BY THE APPELLANT VIDE LETTER DATED 19/1/2017. THEREFORE, EVEN AFTER AN ADDITION HAS BEEN MADE BY THE A.O FOR WANT OF INFORMATION, THE APPELLANT HAS NOT DISCLOSED ALL THESE TRANSACTIONS EVEN DURING THE APPEAL PROCEEDINGS WITH THE UNDE RSIGNED. THE APPELLANT HAS ALSO NOT DISCLOSED THE SOURCE OF INVESTMENT IN THESE SHARES. SINCE THE APPELLANT HAS DONE LOT OF TRANSACTIONS IN VARIOUS SHARES WHICH HAVE NOT BEEN DISCLOSED AT ALL, THE ONUS IS ON THE APPELLANT TO DISCHARGE ITS OBLIGATION BY FIL ING THE CORRECT INCOME. EVEN IF THE APPELLANT HAS NOT EARNED PROFIT IN THE SHARES OF L & T IT DOES NOT MEAN THAT HE DID NOT HAVE ANY PROFIT FROM SO MANY OTHER TRANSACTIONS IN SO MANY SHARES ENTERED INTO BY THE APPELLANT DURING THE YEAR. MOREOVER, THE SOURC E OF INVESTMENT IN THESE SHARES HAVE ALSO NOT BEEN EXPLAINED BY THE APPELLANT EITHER BEFORE THE A.O OR BEFORE THE UNDERSIGNED. THEREFORE, IN THE ABSENCE OF COMPLETE DETAILS OF THESE TRANSACTIONS AND OF THE J FACT THAT THE APPELLANT HAS NOT PRODUCED ALL T HE DETAILS OF THESE SHARES AND THE I INVESTMENT MADE BY THE APPELLANT EVEN AFTER THE REMAND REPORT WAS FORWARDED TO THE APPELLANT ALONG WITH THE COPY OF THE LEDGER ACCOUNT SUBMITTED U/S. 133(6) BEFORE THE A.O BY M/S. RAJVI STOCK BROKING, STOCK B ROKER, THE | APPELLANT HAS NOT ITA NO .1313 / AHD/2017 ASSTT. YEAR 2011 - 12 PAGE 8 OF 10 DISCHARGED THE ONUS CAST ON HIM BY THE STATUTE. THEREFORE, THE ARGUMENT OF THE APPELLANT ARE NOT SUSTAINABLE AND THEREFORE REJECTED. ACCORDINGLY THE ADDITION MADE BY THE A.O OF RS. 5,65,185/ - IS CONFIRMED. HOWEVER, IT IS CLARIFIED THAT ALTHOUGH THERE IS NO PROFIT IN THE SHARES OF L & T ON WHICH ADDITION HAS BEEN MADE BY THE A.O BUT THE FACT REMAINS THAT DESPITE SO MANY OPPORTUNITIES, THE APPELLANT HAS STILL NOT DISCLOSED ALL THE SHARE TRANSACTIO NS EVEN AFTER THE REMAND RE PORT. THE APPELLANT IS DUTY BOUND AS PER THE STATUTE TO OFFER ITS TRUE AND CORRECT INCOME, HOWEVER, THE APPELLANT HAS MISERABLY FAILED ON THIS ACCOUNT. AS PER THE INFORMATION COLLECTED IN THE A.O IN THE REMAND REPORT P ROCEEDINGS FROM SHARE BROKER M /S. RAJV I ST OCK BROKING LTD., THE APPELLANT HAS CARRIED OUT TRADES IN 45 SCRIP TS DURING THE YEAR. EVEN IN HIS SUBMISSION BEFORE ME, THE APPELLANT HAS DISCLOS ED SHARE TRANSACTION IN 6 SCRIP T S. THEREFORE, THE APPELLANT HAS NOT DISCLOSED TRANSACTIONS FROM 39 SCRIP T S. EVEN IN THE REJOINDER TO THE REMAND REPORT, THE APPELLANT HAS NOT SUBMITTED ANY REPLY WHATSOEVER AS TO WHY THESE TRANSACTION SHAVE NOT BEEN DISCLOSED EITHER BEFORE THE A.O OR BEFORE THE CIT(A). THE APPELLANT IS ABSOLUTELY SILENT ON THESE TRANSACTIONS WHIC H CLEARLY INDICATES HIS GUILTY MIND AND MALAFIDE INTENTION. THEREFORE, THE APPELLANT FAILED TO DISCHARGE THE ONUS CAST ON HIM TO NOT ONLY DISCLOSE ALL THE TRANSACTIONS BUT ALSO REPORT CORRECT INCOME FOR TAXATION. AS THE APPELLANT HAS FAILED TO DO SO, THE A DDITION MADE BY THE A.O OF RS. 5,65,185/ - IS BEING TREATED AS THE INCOME OF THE APPELLANT FROM DEALINGS IN ALL THESE SHARES AS WELL AS THE INITIAL INVESTMENT MADE BY THE APPELLANT FOR CARRYING OUT THESE TRADES. IT IS A FACT THAT EVEN FOR DAY TRADING, THE B ROKERS DO NOT ENTER INTO THESE TRADES WITHOUT TAKING MARGIN IN ADVANCE FROM THE CLIENTS. SINCE THE APPELLANT HAS NOT DISCLOSED ANY OF THESE TRADES RS.5,65,185/ - IS CONFIRMED ON ACCOUNT OF THE PROFIT EARNED FROM THESE TRADE AS WELL AS UNDISCLOSED INVESTMENT IN THE FORM OF MARGIN/PAYMENT TO THE BROKER. THE ADDITION OF THE A.O. IS ACCORDINGLY CONFIRMED. THIS GROUND OF APPEAL IS DISMISSED. B EING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A), THE ASSESSEE IS IN APPEAL BEFORE US. 10. THE LEARNED AR BEFORE US SUBMIT TED THAT THE ASSESSEE HAS DEAL T IN 6 SCRIPTS DURING THE YEAR WHICH RESULTED PROFIT OF RS. 2 , 250 / - ONLY. THE LEARNED AR IN SUPPORT OF HIS CLAIM ALSO FILED THE COPY OF INVOICE RAISED BY THE BROKER NAMELY RAJ V EE STOCK BROKING LTD WHICH IS PLACED ON PAGE S 7 TO 8 OF THE PAPER BOOK. 11. ON THE OTHER HAND THE LEARNE D DR VEHEMENTLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW ITA NO .1313 / AHD/2017 ASSTT. YEAR 2011 - 12 PAGE 9 OF 10 12. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ASSESSEE IN THE YEAR UNDER CONSIDERATION HAS SOLD THE SHARES OF L & T AMOUNTING TO RS. 5, 65 , 1 85/ - . T HE AO HAS TREATED THE ENTIRE AMOUNT OF SALE AS INCOME OF THE ASSESSEE WITHOUT GIVING THE CREDIT TO THE ASSESSEE FOR THE COST OF ACQUISITION. 12.1 HOWEVER , T HE AO DURING THE RE MAND PROCEEDINGS OBTAINED AN INFORMAT ION FROM THE BROKER NAMELY RAJVEE STOCK BROKING LTD WHEREIN IT WAS CONFIRMED THAT THE ASSESSEE HA S INCURRED A LOSS OF RS. 6 74 / - IN RESPECT OF SALE PURCHASE OF THE SHARES OF L &T. HOWEVER, THE AO IN THE REMAND REPORT OBJ ECTED ON THE ADMISSION OF THE ADDITIONAL EVIDENCES ON THE GROUND THAT THE CASE OF THE ASSESSEE DOES NOT FALL IN ANY OF THE EXCEPTION AS SPECIFIED UNDER RULE 46 A OF I NCOME T AX R ULE. 12.2 HOWEVER, THE LEARNED CIT (A) HAS OBSERVED THAT THE ASSESSEE HAS DEAL T IN 45 SCRIPTS BUT THE B ROKER HAS FURNISHED THE DETAIL S WITH RESPECT TO 6 SCRIPTS ONLY. HOWEVER ON PERUSAL OF THE REPLY OF THE BROKER PLACED ON PAGES 7 AND 8 OF THE PAPER BOOK WE NOTE THAT THE ASSESSEE HAS DEALT ONLY IN 6 SCRIPTS. AS SUCH, THE LEARNED CIT (A) HAS NOT BROUGHT ANY INFORMATION ON RECORD SUGGESTING THAT THE ASSESSEE HAS DEALT IN 45 SCRIPTS. FROM THE ABOVE, WE CONCLUDE THAT THE ASSESSEE HAS INCURRED LOSSES ON THE SALE PURCHASE OF L & T SHARES AMOUNTING TO RS.6 74 / - AND AS A WHOLE FOR ALL THE S CRIPTS H E HAS EARNED A PROFIT OF RS. 2 ,250/ - ONLY . ITA NO .1313 / AHD/2017 ASSTT. YEAR 2011 - 12 PAGE 10 OF 10 12.3 THEREFORE, WE HOLD THAT THERE CANNOT BE ANY ADDITION TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF SALE OF SHARES OF L & T FOR THE REASONS AS DISCUSSED ABOVE. 12.4 REGARDING THE ALLEGATION OF THE LEARNED CIT (A) ABOUT THE SOURCE OF INVESTMENT IN THE SHARES, WE NOTE THAT THERE WAS THERE WAS NO SUCH SHOW CAUSE NOTICE ISSUED TO THE ASSESSEE EXPLAINING THE SOURCE OF INVESTMENT. THEREFORE, IN OUR CONSIDERED VIEW THERE CAN NOT BE ANY ADDITION ON ACCOUNT OF SOURCE OF INVESTMENT WITHOUT SHOWING A SHOW CAUSE NOTICE TO THE ASSESSEE FOR HIS EXPLANATION. 12.5 AFTER CONSIDERING THE FACTS IN TOTALITY AS DISCUSSED ABOVE, WE ARE NOT CONVINCED WITH THE FINDING OF THE LOWER AUTHORITIE S. ACCORDINGLY WE REVERSE THE ORDER OF THE AUTHORITIES BELOW. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 13. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE COURT ON 14 /10 / 2019 AT AHMEDABAD. - SD - - SD - (MS MADHUMITA ROY ) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 14 / 10 /2019 M ANISH