ITO, Kanpur V. M/s. Vishwash Marketing Pvt. Ltd.,

ITA 134/LKW/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70592 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 13-11-2013
• Assessment Year: 1998-1999
• Appeal Filed On: 21-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Keywords: Income from undisclosed sources; Share purchase agreement
• Section: 147; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.134/LKW/2011 A.Y.:1998 - 99 INCOME TAX OFFICER, WARD - 6(2), KANPUR. VS. M/S VISHWASH MARKETING PVT. LTD., E - 58, SECTOR - 3, NOIDA. PAN:AAACP7578D (APPELLANT) (RESPONDENT) C.O.NO. 20/LKW/2011 (IN ITA NO. 134 /LKW/201 1 ) A.Y.:1998 - 99 M/S VISHWASH MARKETING PVT. LTD., E - 58, SECTOR - 3, NOIDA. PAN:AAACP7578D VS. INCOME TAX OFFICER, WARD - 6(2), KANPUR. (OBJECTOR) (RESPONDENT) REVENUE BY SHRI ALOK MITRA, D.R. ASSESSEE BY SHRI ABHINAV MEHROTRA, ADVOCATE DATE OF HEARING 13/11/2013 DATE OF PRONOUNCEMENT 2 3 /12/2013 O R D E R PER A. K. GARODIA, A.M. THE APPEAL IS FILED BY THE REVENUE AND THE CROSS OBJECTION IS FILED BY THE ASSESSEE, WHICH ARE DIRECTED AGAINST THE ORDER OF CIT ( A) - I, KANPUR DATED 13 / 01 /201 1 FOR ASSESSMENT YEAR 1998 - 99. 2 2. FIRST WE TAKE UP THE CROSS OBJECTION FILED BY THE ASSESSEE. IN THI S CROSS OBJECTION, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE LEARNED. CIT ( A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD . AO IN FRAMING THE IMPUGNED ASSESSMENT ORDER THAT TOO WITHOUT COMPLYING WITH THE MANDATORY REQUIREMENTS OF SECTION 147 - 151 AND MORE SO WHEN NOTICE U/S 148 WAS NOT SERVED IN ACCORDANCE WITH THE PROVISIONS OF LAW. 2. THAT HAVING REGARD TO THE FACTS AND CIR CUMSTANCES OF THE CASE LD. CIT ( A) HAS ERRED IN NOT QUASHING THE IMPUGNED ASSESSMENT ORDER ON THE GROUND THAT MANDATORY NOTICE U/S 148 WAS NOT SERVED IN ACCORDANCE TO THE PROVISION OF THE LAW. 3. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE RECORDS OF THE ASSESSING OFFICER WERE INSPECTED BY THE ASSESSEE AS P ER APPLICATION DATED 17/08/2011, AVAILABLE AT PAGE 1 OF PAPER BOOK. HE ALSO SUBMITTED THAT THE PHOTOCOPY OF THE ORDER SHEET ENTRY IS AVAILABLE ON PAGES 2 TO 5 OF THE PAPER BOOK AND THE NOTICE ISSUED BY THE ASSESSING OFFICER U/S 148 IS AVAILABLE ON PAGE 7 OF THE PAPER BOOK. HE SUBMITTED THAT FROM PAGE 7, IT CAN BE SEEN THAT THIS NOTICE ISSUED BY THE ASSESSING OFFICER IS DATED 29/03/2005 AND AS PER ORDER SHEET ENTRY ON PAGE 2 OF THE PAPER BOOK ON 30/0 3 /2005, IT IS SEEN THAT THE APPROVAL FROM ADDL. CIT WAS R ECEIVED ON 30/0 3 /2005. HE SUBMITTED THAT UNDER THESE FACTS, IT IS APPARENT THAT THE NOTICE ISSUED BY THE ASSESSING OFFICER WAS ISSUED BEFORE GETTING THE APPROVAL FROM ADDL. CIT. AT THIS JUNCTURE, I T WAS POINTED OUT BY THE BENCH THAT ALTHOUGH THE TYPED DA TE IS 29/03/2005 BUT BELOW THE SIGNATURE OF THE ASSESSING OFFICER, IT IS NOTED THAT IT WAS ISSUED ON 30/03/2005. AS PER THE 3 PHOTOCOPY OF THE SPEED POST ALSO ON THE SAME PAGE OF THE PAPER BOOK, IT IS SEEN THAT THE SAME WAS DISPATCHED ON 30/03/2005. THE BE NCH WANTED TO KNOW THAT MERELY BECAUSE THE NOTICE WAS KEPT READY ON 29/03/2005 BUT THE SAME WAS ISSUED ON 30/03/2005, HOW IT CAN BE SAID THAT THERE IS DEFECT IN THE ISSUANCE OF NOTICE. 4. IT REPLY, IT WAS SUBMITTED THAT THE NOTICE WAS TYPED ON 29/03/2005 AND SINGED ON THE SAME DATE AND FOR THIS REASON , THE NOTICE IS NOT VALID. 5. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT ONLY ARGUMENT MADE BY LEARNED A.R. OF THE ASSESSEE IN RESPECT OF TECHNICAL OBJECTION RAISED BY THE ASSESSEE IN THE CROSS OBJECTION WAS THAT SINCE THE NOTICE WAS TYPED AND SIGNED ON 29/03/2005 AND THE APPRO VAL FROM ADDL. CIT WAS RECEIVED ON 30/03/2005, THE NOTICE ISSUED BY THE ASSESSING OFFICER IS NOT VALID. IN THIS REGARD, WE WOULD LIKE TO MENTION THAT IN THE NOTICE ITSELF , IT IS NOTED BELOW THE SIGNATURE OF THE ASSESSING OFFICER THAT THE NOTICE WAS ISSUED ON 30/03/2005 AND AS PER THE SPEED POST RECEIPT ALSO , AVAILABLE ON THE SAME PAGE, IT IS SEEN THAT THE NOTICE WAS DISPATCHED ON 30/03/2005. AS PER THE ORDER SHEET ENTRY ON PAGE 2 OF THE PAPER BOOK, IT IS SEEN THAT IT IS RECORDED I N THE ORDER SHEET THAT ON 30/03/2005, NOTICE U/S 148 HAD BEEN SENT THROUGH SPEED POST. IN THE LIGHT OF THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT MERELY BECAUSE THE NOTICE WAS KEPT READY BY THE ASSESSING OFFICER, IT CANNOT BE SAID THAT THE NOTICE WAS ISSUED PRIOR TO THE A PPROVAL FROM ADDL. CIT. AS PER THE FACTS AND DOCUMENTS AVAILABLE ON RECORD, IT IS SEEN THAT THE NOTICE WAS ISSUED ONLY ON 30/03/2005 AFTER RECEIVING APPROVAL FROM ADDL. CIT AND THEREFORE, THE SAME IS VALID. WE HOLD 4 ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE IN ITS CROSS OBJECTION ARE REJECTED AND THE CROSS OBJECTIONS OF THE ASSESSEE IS DISMISSED. 7. NOW WE TAKE UP THE APPEAL FILED BY THE REVENUE IN WHICH THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE LD COMMISSIONER OF INCOME TAX(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITIONS OF RS.31,45,248/ - MAD E BY THE ASSESSING OFFICER. 2. THAT WHILE DELETING THE ADDITION OF RS.31,45,248 / - THE CIT(A) I KA NPUR HAS MISINTERPRETED THE FACTS AS MENTIONED IN THE ASSESSMENT ORDER. 3. THAT T HE LD COMMISSIONER OF INCOME TAX(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITIONS WITHOUT APPRECIATING THE FACTS THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TRANSACTIONS OF SHARES COULD NOT BE PROVED BY THE ASSESSEE. 4. THAT THE ORDER OF L D COMMISSIONER OF INCOME TAX (A) - L, KANPUR BEING ERRONEOUS IN LAW AND ON THE FACTS DESERVES TO BE VACATED AND THAT THE ORDER OF ASSESSING OFFICER BE RESTORED. 5. THAT THE APPELLANT CRAVES LEAVE TO MODIFY ANY OF THE GROUNDS OF APPEAL GIVEN ABOVE AND/OR ADD ANY FRESH GRO UNDS AS AND WHEN IT IS CONSIDERED NECESSARY TO DO SO. 8. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS THE LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT(A). 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT IT IS NOTED BY THE ASSESSING OFFICER ON PAGE 3 AND 4 OF THE ASSESSMENT ORDER THAT THE ASSESSEE HAS MADE S ALE OF SHARES THROUGH A BROKER M/S KISHAN LAL MONGA & CO. OF 8 COMPANIES. IT IS ALSO NOTED IN THE ASSESSMENT ORDER ON PAGE 4 THAT OUT 5 OF THESE COMPANIES, THE COMPANIES MENTIONED AT SL.NO. 1 TO 8 ARE PRIVATE LIMITED COMPANIES AND THE SHARES OF THESE COMPAN IES ARE NOT TRADEABLE IN THE STOCK EXCHANGE. HE HAS ALSO NOTED THAT THE ASSESSEE HAS ALSO NOT FILED ANY EVIDENCE REGARDING PREVAILING MARKET RATES ON THE DATE OF AFORESAID TRANSACTIONS. HE HAS FURTHER NOTED IN PARA 9 OF THE ASSESSMENT ORDER THAT THE ASSE SSEE HAS SHOWN TO HAVE SOLD 27,500 SHARES OF M/S KESHAV INVESTMENT CONSULTANTS PVT. LTD., KANPUR FOR RS.2,73,566/ - TO M/S KISHAN LAL MONGA & CO., NEW DELHI AND ON ENQUIRY FROM THAT COMPANY, IT IS FOUND THAT NO SUCH APPLICATION FOR TRANSFER OF SHARES HAS BE EN RECEIVED BY THAT COMPANY AND THE COMPANY STATED THAT THE SHARES CONTINUED IN THE NAME OF THE ASSESSEE COMPANY. SIMILARLY IN PARA 10 OF THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS NOTED NUMBER OF SHARES CLAIMED TO HAVE BEEN SOLD BY THE ASSESSEE OF V ARIOUS OTHER COMPANIES AND REGARDING THESE COMPANIES ALSO , THE ASSESSING OFFICER HAS NOTED THAT ON ENQUIRY, THESE COMPANIES HAVE STATED THAT AS PER THEIR SHARE HOLDERS REGISTER, NO NAME OF M/S KISHAN LAL MONGA & CO. IS ENTERED AND THE ASSESSEE COMPANY HAS NEVER LODGED ANY APPLICATION FOR TRANSFER OF SUCH SHARES. ON THESE FACTS , THE ASSESSING OFFICER GAVE A FINDING THAT THIS CLEARLY SHOWS THAT THE ASSESSEE COMPANY HAS NEVER SOLD THE SHARES OF THESE COMPANIES, AS HAS BEEN CLAIMED. THEREAFTER, IN PARA 11 OF THE ASSESSMENT ORDER, IT IS NOTED THAT THE ASSESSEE COMPANY HAS ALSO CLAIMED TO HAVE SOLD 45,000 SHARES OF M/S BISHESHWAR INVESTMENT PVT. LTD., KANPUR FOR RS.4,47,637.50 TO M/S KISHAN LAL MONGA & CO., NEW DELHI. THEREAFTER, HE HAS NOTED THAT A SURVEY U/S 133A(1) OF THE ACT WAS CARRIED OUT ON 05/08/2005 IN THE CASE OF M/S BISHESHWAR INVESTMENT PVT. LTD. AND IN COURSE OF SURVEY, A QUERY WAS RAISED FROM THE DIRECTOR OF THAT COMPANY TO SHOW WHETHER THE SHARES OWNED BY THE ASSESSEE COMPANY WERE TRANSFERRED IN T HE NAME OF M/S KISHAN LAL MONGA & CO., NEW DELHI. THE DIRECTOR OF THAT COMPANY STATED THAT HE DID NOT KNOW ANYTHING ABOUT THE SALE OF SHARES. HE FURTHER STATED THAT THE COMPANY HAD 6 CLOSED ITS OPERATIONS DURING THE YEAR 1998. THEREAFTER, HE HAS NOTED THA T THE ASSESSEE COMPANY WAS ASKED TO PRODUCE THE SALE BILLS, CONTRACT NOTE ETC. AND THEREAFTER, H E HAS NOTED THAT THE PHOTOCOPIES OF SALE BILLS WERE SUBMITTED BY THE ASSESSEE WHEREIN NO DISTINCTIVE NOS. OF SHARES WERE MENTIONED. HE HAS ALSO NOTED THAT IN T HE CONTRACT NOTE ALSO , THERE IS NO SIGNATURE OF THE PARTY. ON THE BASIS OF THESE OBSERVATIONS, THE ASSESSING OFFICER HELD THAT THE SALE PROCEEDS OF THESE SHARES CLAIMED BY THE ASSESSEE IS NOTHING BUT UNEXPLAINED INCOME. 9.1 BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(A), WHO HAS DELETED THE ADDITION AS PER PARA 15 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: 15. I HAVE CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE AND SUBMISSIONS OF THE LD. AR. AS DETAILED ABOVE, WHILE CONSIDERING THE SIMILAR ISSUE UNDER THE SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE, I HAD DECIDED THE ISSUE IN ANOTHER CASE IN THE FOLLOWING MANNER: '9. THE DECISION IN THE CASES OF (1) ACIT VS SHRI RAVINDRAKUMAR TOSHNIWAL I.T.A.T., MUMBAI. (2) CIT VS CURRENCY INVESTMENT CO. LTD.. IT REFERENCE NO.204 OF 1992 AND (3) ITO VS BIBI RANI BANSAL ( SMT.) (2010 ) 43 DT R 279 (AGRA) (TM) (TRIB.) ARE ALSO RELEVANT ON THIS ISSUE WHERE IT WAS RESPECTIVELY HELD THAT (1) ALLEGED BOGUS SHARE TRANSACTIONS NEED TO BE PROVED AGAINST STRONG DOCUMENTARY EVIDENCES. (2) SECTION 28(I) OF THE INCOME - TAX ACT, 1961 - BUSINESS DEDUCTION/ LOSS - ALLOWABLE AS - ASSESSEE, AN INVESTMENT COMPANY, PURCHASED AND SOLD SHARES BUT SINCE IT COULD NOT PRODUCE BROKER THROUGH WHOM LOSS CLAIMED BY ASSESSEE - WHETHER MERELY BECAUSE ASSESSEE COULD NOT PRODUCE BROKER THROUGH WHOM 7 SHARES WERE SOLD, GENUINENESS OF TRANSACTION COULD BE DOUBTED WHEN ASSESSEE DISCLOSED IDENTITY OF PERSONS WHO SHARES WERE PURCHASE D AND TO WHOM SOLD - HELD, NO - WHETHER, THEREFORE, LOSS CLAIMED BY ASSESSEE WAS ALLOWABLE - HELD, YES', AND (3) ASSESSEE HAVING SUBMITTED COPIES OF CONTRACT NOTES, BILLS SHARE CERTIFICATES ALONG WITH DETAILS OF DEMAND DRAFT ISSUED FROM THE ACCOUNT OF THE BROK ER TO SUBSTANTIATE THE SALE OF SHARES MADE BY HER, AND THE AO HAVING FAILED TO ESTABLISH THAT THE ASSESSEE HAD INTRODUCED HER OWN UNACCOUNTED MONEY IN THE SHAPE OF SALE PROCEEDS OF SHARES, THE TRANSACTION OF SALE OF SHARES CANNOT BE TREATED AS NON GENUINE FOR THE REASON THAT THE BROKER MADE CONTRADICTORY STATEMENTS AND THE ASSESSEE WAS NOT ALLOWED CROSS EXAMINATION AND THEREFORE THE SALE CONSIDERATION DECLARED BY THE ASSESSEE IS ASSESSABLE AS CAPITAL GAIN AND NOT AS INCOME FROM UNDISCLOSED SOURCES. FURTHER, THE DECISION IN THE CASE REFERRED ABOVE IS ALSO RELEVANT TO THE FACTS AND CIRCUMSTANCES OF THE CASE. IT IS ON RECORD THAT THE AO HAS TREATED THE AMOUNT AS INCOME FROM OTHER SOURCES ON THE GROUND THAT 'INSPITE OF THE BEST EFFORTS THE WHEREABOUTS O F M/S KISHAN LAL MONGA & CO. , NEW DELHI COULD NOT BE TRACED OUT AND THE ASSESSEE HAS ALSO BEEN UNABLE TO GIVE ANY EVIDENCE OF THE EXISTENCE OF M/S KISHAN LAL MONGA & CO. , NEW DELHI . I OBSERVE THAT THE ASSESSEE COMPANY HAS NEVER SOLD SHARES OF ABOVE MENTION ED COMPANIES OF M/S KISHAN LAL MONGA & CO., NEW DELHI AND THE ASSESSEE COMPANY HAS ALSO NOT GIVEN ANY EVIDENCE TO PROVE THE TRANSACTIONS WERE MADE WITH M/S KISHAN LAL MONGA & CO., NEW DELHI'. AT THE SAME TIME, IT HAS BEEN NOTED IN THE ASSESSMENT ORDER IN PARA - 7 THAT 'THE ASSESSEE FILED A REPLY DATED 24.2.2006 ENCLOSING THEREWITH COPIES OF SALE/PURCHASE BILLS WITHOUT MENTIONING THE DISTINCTIVE NOS. OF SHARES TRANSACTED. REGARDING THE TRANSACTIO NS WITH M/S KISHAN LAL MONGA & CO., NEW DELHI, FROM THE PERUSAL OF COPIES OF SALE/PURCHASE BILLS AND CONTRACT NOTE FILED'. IT IS EVIDENT THAT THE NECESSARY SUPPORTING DOCUMENTS FOR THE TRANSACTIONS UNDER REFERENCE WERE FILED BY THE APPELLANT AND SAME WERE IGNORED BY THE AO WITHOUT ANY COGENT REASON OR ANY DEFECT 8 AND CONTRADICTION AGAINST THE SAID DOCUMENTS. IT IS ALSO IMPORTANT THAT THE APPELLANT HAS THE BUSINESS OF TRADING OF SHARES, THEREFORE, NON - AVAILABILITY OF A BROKER SUBSEQUENTLY, FOR WHICH NO VISIBL E EFFORTS ARE SEEM TO BE MADE IS NOT A GROUND LEADING TO VALID CONCLUSION. THE TRANSACTIONS COULD NOT HAVE BEEN TREATED AS BOGUS. SAME IS WITHOUT BASIS AND BY IGNORING THE SUFFICIENT EVIDENCE AND EXPLANATION FORWARDED BY THE APPELLANT BEFORE THE AO. THE AO HAS BASED HIS FINDING ON THE BASIS THAT SUCH SHARE WERE NOT TRANSFERRED IN THE NAME OF BUYER, THAT PREVAILING MARKET RATE WAS NOT ESTABLISHED BEFORE AO. IN FACT, THESE ARE SECONDARY CIRCUMSTANCES, WHICH BECOME IRRELEVANT IN THE CONTEXT OF BOOKS OF ACCOUNT OF APPELLANT, WHERE TRANSACTIONS ARE DULY RECORDED, SUPPORTING BILLS/VOUCHERS AND TRANSACTIONS ARE MADE THROUGH BANK WHICH ALL WAS ON RECORD BEFORE AO AS WELL, AND NO DISCREPANCY WAS FOUND VIZ - A - VIZ THEM. UNDER THE CIRCUMSTANCES, THE AO IS DIRECTED TO DEL ETE THE ADDITION OF RS.31,45,248/ - AND GROUNDS NO. 4, 5 AND 6 OF APPEAL ARE ALLOWED. 9.2 WE HAVE CONSIDERED THE FINDING OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AND THE OPERATING PORTION OF THE ORDER OF CIT(A), AS REPRODUCED ABOVE, AND ARE OF THE CONSIDERED OPINION THAT THE OBJECTIONS OF THE ASSESSING OFFICER COULD NOT BE CONTROVERTED BY THE ASSESSEE AND AS PER THE FINDING OF LEARNED CIT(A) ALSO, HE COULD NOT DISLODGE THESE FINDINGS OF THE ASSESSING OFFICER. WE FAIL TO UNDERSTAND THAT WHEN THE SH ARES CLAIMED TO HAVE BEEN SOLD BY THE ASSESSEE ARE STILL EXISTING IN THE RECORDS OF TH OSE COMPAN IES IN THE NAME OF THE ASSESSEE COMPANY, HOW IT CAN BE ACCEPTED THAT THE AMOUNT RECEIVED BY THE ASSESSEE IN THE PRESENT YEAR FROM M/S KISHAN LAL MONGA & CO., NE W DELHI IS ON ACCOUNT OF SALE OF THESE SHARES. WHENEVER A PERSON BUYS SHARE, HE WILL TAKE IT TRANSFERRED IN HIS NAME. EVEN IF HE SELLS IT TO SOMEONE ELSE AND GIVES DELIVERY TO SUCH BUYER ALONG WITH BLANK SHARE TRANSFER DEED SIGNED BY THE SELLER , THE SHAR E HAVE TO GET TRANSFERRED WITHIN ONE YEAR FROM THE DATE OF SHARE TRANSFER DEED SIGNED BY THE ASSESSEE BECAUSE AFTER ONE YEAR , THE SHARE TRANSFER DEED DOES NOT REMAIN VALID AND ANY PERSON WHO IS HOLDING THE SHARE CANNOT GET THE SHARES 9 TRANSFERRED AFTER THIS DATE. THE FINANCIAL YEAR INVOLVED IS 1998 - 99 AND THE ASSESSMENT ORDER IS PASSED BY THE ASSESSING OFFICER IN THE YEAR 2006 AND TILL THEN , THE SHARES WERE HELD IN THE NAME OF THE ASSESSEE COMPANY. HENCE, UNDER THESE FACTS , IT IS NOT ACCEPTABLE THAT THE AM OUNT IN QUESTION RECEIVED BY THE ASSESSEE FROM M/S KISHAN LAL MONGA & CO., NEW DELHI IN THE PRESENT YEAR WAS RECEIVED BY THE ASSESSEE ON ACCOUNT OF SALE OF THESE SHARES AS CLAIMED BY THE ASSESSEE . THEREFORE, IN OUR CONSIDERED OPINION, THE ORDER OF CIT(A) ON THIS ISSUE IS NOT SUSTAINABLE. WE, THEREFORE, REVERSE THE ORDER OF CIT(A) AND RESTORE THAT OF THE ASSESSING OFFICER. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS ALLOWED. 10. IN THE COMB INED RESULT, THE CROSS OBJECTION IS DISMISSED AND THE APPEAL OF THE REVENUE IS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 3 /12/2013. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. DR, ITAT, LUCKNOW 10