ACIT, Circle - 32, Kolkata V. Amita Tainwala, Kolkata

ITA 1595/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2467 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 23-03-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 10-09-2009
• Court: TRIBUNAL
• Department Lawyers: D R MAJHI
• Keywords: Unexplained cash credit; Additional evidence; Assessment record
• Section: 143(3); 133(6)

Judgement Text

1 , A , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- A , KO LKATA [ . . . . . . . . , ,, , . .. . . .. . , , , , !' ] [BEFORE SHRI B.R.MITTAL, JUDICIAL MEMBER & SRI C.D. RAO, ACCOUNT ANT MEMBER] # # # # / ITA NO. 1595 (KOL) OF 2009 $%& '( / ASSESSMENT YEAR 2005-06 ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE-32, KOLKATA . AMITA TAINWALA, KOLKATA. (PAN-ABNPT0727B) (+, / APPELLANT ) - % - - VERSUS - (/0+,/ RESPONDENT ) +, 1 2 !/ FOR THE APPELLANT: / SRI D.R. MAJHI /0+, 1 2 ! / FOR THE RESPONDENT: / SRI RAVI TULSIYAN !3 / ORDER ( . . ), (B.R.MITTAL), JUDICIAL MEMBER : THE DEPARTMENT HAS FILED THIS APPEAL FOR ASSESSME NT YEAR 2005-06 AGAINST THE ORDER OF LD. C.I.T.(A) DATED 15/6/2009 ON THE FOLLO WING GROUNDS :- 1. THAT THE LD. CIT(A) ERRED IN LAW IN GIVING CREDENCE TO FRESH EVIDENCE BY WAY OF LETTER FROM I.C.BOID & CO. FILED ON 1 ST JANUARY, 2008, IN VIOLATION OF RULE 46A OF THE I.T.RULES, 1962. 2. THAT THE LD. CIT(A)) ERRED IN LAW AND ON FACTS IN HOLDING THAT THE RECEIPT OF THE SUM OF RS.12,18,500/- WAS TO BE CHARGED TO TAX AS LONG TERM CAPITAL GAINS INSTEAD OF INCOME FROM OTHER SOURCES. 3. THAT THE ORDER OF THE LD. CIT(A) BE RE VERSED AND THE ORDER OF THE AO BE UPHELD. 2. THE ASSESSEE FILED HER RETURN FOR THE ASSESSMEN T YEAR UNDER CONSIDERATION SHOWING TOTAL INCOME OF RS.55,24,844/-. THE ASSESS MENT WAS COMPLETED U/S. 143(3) ON A TOTAL INCOME OF RS.55,74.090/-. IN THE RETURN OF I NCOME, THE ASSESSEE HAD SHOWN LONG- TERM CAPITAL GAIN (LTCG) OF RS.11,56,555/- AND SHOR T-TERM CAPITAL GAIN (STCG) OF RS. 42,28,937/- AND THE P.L ACCOUNT WAS CREDITED BY THE TOTAL AMOUNT OF RS.53,85,492/- UNDER THE HEAD PROFIT ON SALE OF SHARES. THE CHA RT BELOW REFLECTS THE DETAILS OF PURCHASE AND SALE OF SCRIPS OBTAINED FROM CONTRACT NOTES ISSUED BY THE BROKERS OF THE 2 ASSESSEE AND FURNISHED BY THE ASSESSEE BEFORE THE A .O. AND ALL THE TRADES WERE EXECUTED BY THE BROKERS THROUGH THE CALCUTTA STOCK EXCHANGE :- PURCHASES MADE : SL.NO. NAME OF SCRIP QUANTITY VALUE TRADE DATE TRADE NO. PURCHASED FROM BROKER 1. KHOOBSURAT 2000 55,360 21-03-2003 1561 I.C.BOID & CO. 2. EMERALD COM. 500 5,885 24-03-2003 112 - DO - 3. STANLEY G 20000 1,42,507 10-11-2004 2483-86 SANTOSH KR. KEJRI- WAL SECURITIES (P) LTD. 4. IVRCL 10000 7,61,500 177-2003 3715-88 SHARADDHA STOCK BROKING (P) LTD. SALES MADE : SL.NO. NAME OF SCRIP QUANTITY VALUE TRADE DATE TRADE NO. SALES MADE THROUGH BROKER 1. KHOOBSURAT 2000 9,76,000 15-10-2004 468 SANTOSH KR. KEJRI- WAL SECURITIES (P) LTD. 2. EMERALD COM. 500 2,42,500 13-12-2004 314 - DO - 3. STANLEY G 5000 7,98,750 08-03-2005 3950 - DO - 10000 16,20,000 09-03-2005 4053 - DO - 2500 3,97,500 10-03-2005 4094 - DO - 2500 3,95,500 10-03-2005 4095 - DO - THE A.O. ISSUED LETTERS TO THE CONCERNED BROKERS FO R CONFIRMATION OF THE PURCHASE AND SALE MADE BY THEM ON BEHALF OF THE ASSESSEE. ACCOR DING TO THE A.O., THERE WAS NO COMPLIANCE FROM I.C. BOID & CO. HENCE LETTER WAS I SSUED TO THE CALCUTTA STOCK EXCHANGE CALLING FOR INFORMATION U/S. 133(6) AS TO WHETHER I TS MEMBER I.C. BOID & CO. HAD EXECUTED TRADE NO. 1561 ON 21/3/2003 IN THE SCRIP OF KHOOBSU RAT LTD. AND TRADE NO. 112 ON 24/3/2003 IN THE SCRIPT OF EMERALD COMMERCIAL LTD., AS REVEALED FROM THE CONTRACT NOTES FURNISHED BY THE ASSESSEE AND MENTIONED IN TH E CHART ABOVE. THE CALCUTTA STOCK EXCHANGE VIDE THEIR REPLY DATED 31/12/2007 DENIED A NY SUCH TRANSACTION BEING EXECUTED. THE A.O., THEREFORE, INFERRED THAT THE ASSESSEE NEV ER OWNED THE SCRIPS OF THE AFORESAID TWO COMPANIES. HE ALSO HELD THAT LTCG ACCRUING TO THE ASSESSEE FROM SALE OF SCRIPS OF THE AFORESAID TWO COMPANIES, AS CLAIMED BY THE ASSE SSEE, WAS ABSURD AND NOT ACCEPTABLE 3 BY ANY LOGIC. THE A.O. FURTHER OBSERVED THAT M/S. SANTOSH KR. KEJRIWAL SECURITIES (P) LTD., THROUGH WHOM THE SALE HAS BEEN CLAIMED TO HAV E BEEN EXECUTED, HAD ACCOMMODATED ENTRIES IN FAVOUR OF THE ASSESSEE AND, THEREFORE, T HE RECEIPTS OF RS.9,75,400/- AND RS.2,42,400/- FROM THE SAID BROKER COMPANY ON ACCOU NT OF SALES OF 2000 SCRIPS OF KHOOBSURAT LTD. AND 500 SCRIPS OF EMERALD COMMERCIA L LTD. RESPECTIVELY BOTH HYPOTHETICALLY OWNED BY THE ASSESSEE WERE CONSIDERE D AS SUMS FOUND CREDITED IN THE BOOKS OF THE ASSESSEE, THE NATURE AND SOURCE OF WHI CH HAS NOT BEEN EXPLAINED BY THE ASSESSEE. HE, THEREFORE, CONSIDERED THE TOTAL SUM OF RS.12,17,800/- [RS.9,75,400 + RS. 2,42,400] AS UNEXPLAINED CREDIT IN THE BOOKS OF THE ASSESSEE AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE U/S. 68 OF THE ACT. 3. BEING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFO RE THE LD. C.I.T.(A). THE LD. C.I.T.(A) CONSIDERING THE SUBMISSIONS OF THE ASSESS EE, PERUSING THE DOCUMENTS AND GOING THROUGH THE REASONS OF THE A.O. FOR WHICH IT WAS H ELD BY THE A.O. THAT THE PURCHASES OF SCRIPS MADE BY THE ASSESSEE WERE BOGUS, DELETED THE ADDITION OF RS.12,17,800/- VIDE PARA-6 OF THE IMPUGNED ORDER, WHICH IS AS UNDER :- (6) I HAVE CONSIDERED THE SUBMISSION OF THE APPELLA NT, PERUSED THE DOCUMENT AND GONE THROUGH THE REASONS FOR WHICH IT WAS CONCLUDED BY THE AO THAT THE PURCHASES MADE BY THE APPELLANT OF THE SCRIPS M/S. KHOOBSURAT AND M/S. EMERALD COMMERCIAL LTD. WERE BOGUS AND THE APPELLANT WAS NO T OWNING THE AFORESAID SHARES. I HAVE ALSO GONE THROUGH THE ASSESSMENT REC ORD. THE A.O. HAS ARRIVED ON THE CONCLUSION THAT THE APPELLANT WAS NOT HOLDING S HARES OF KHOOBSURAT AND EMERALD FOR THE REASON THAT THE BROKER M/S. I.C. BA ID & CO. HAS NOT RESPONDED TO THE LETTER ISSUED BY HIM AND THE CALCUTTA STOCK EXC HANGE HAS DENIED THE TRANSACTIONS ON ON-LINE SYSTEM OF TRADING OF THE EX CHANGE. HOWEVER, ON PERUSAL OF ASSESSMENT FOLDER IT IS OBSERVED THAT THE REPLY OF M/S. I. C. BAID & CO. IS ON RECORD. IT WAS INFORMED BY THE BROKER THAT THE SHA RES SOLD TO THE APPELLANT WERE PURCHASED FROM M/S. AGARWAL BROKERAGE P. LTD. OF 6, BRABOURNE ROAD, GROUND FLOOR, KOLKATA-700001, PAN: AACCA1627N. THE BROKER ALSO ENCLOSED THE DETAILS OF PAYMENT RECEIVED FROM THE APPELLANT AND THE COPY OF HIS BANK STATEMENT. THE ANOTHER BROKER M/S. SANTOSH KUMAR KEJRIWAL SECURITI ES (P) LTD., THROUGH WHOM SHARES WERE SOLD HAS ALSO CONFIRMED TO THE A.O. THA T 2000 SHARES OF M/S. KHOOBSURAT WERE SOLD ON 15.10.04 UNDER THE ORDER NO . 1147 AND TRADE NO. 468. SIMILARLY, HE ALSO CONFIRMED THE SALE OF 500 SHARES OF M/S. EMERALD COMMERCIAL LTD. ON 13.12.04 WITH ORDER NO. 823 TRADE NO. 314. IT IS FURTHER OBSERVED FROM THE ASSESSMENT RECORD THAT THE A.O. HAS MADE VERIFICATI ON OF SALE OF SHARES FROM CALCUTTA STOCK EXCHANGE. THE EXCHANGE, VIDE LETTER NO. CSE/MSD/ITAX/07L2/1168/3022 DT. 31.12.07 ADDRESSED TO THE A.O., HAS SUBMITTED THE TRADE DETAILS EXECUTED BY THE BROKER M/S. SANTOSH KEJRIWAL 4 SECURITIES (P) LTD. IN THE SCRIP KHOOBSURAT LTD. AN D M/S. EMERALD COMMERCIAL LTD. ON PERUSAL OF DETAILS IT IS OBSERVED THAT THE CSE H AS CONFIRMED BOTH THE SALE TRANSACTIONS ALONG WITH TRADE NUMBER AND ORDER NUMB ER. HOWEVER, THE A.O. HAS COMPLETELY IGNORED THIS INFORMATION WHICH WAS IN TH E FAVOUR OF THE APPELLANT. HE HAS ONLY CHOSEN THE NEGATIVE INFORMATION GIVEN BY T HE CSE WITH REGARD TO PURCHASE OF SHARES. IT WOULD BE ILLOGICAL TO CONCLU DE THAT THE APPELLANT WAS NOT HOLDING THE SAID SHARES. IF THE APPELLANT WAS NOT H AVING THE SAID SHARES, HOW COULD THE SALE OF THOSE SHARES BE EFFECTED AS EVIDENCED B Y THE CONTRACT NOTES ISSUED BY THE SELLING BROKER AND ALSO CONFIRMED BY THE STO CK EXCHANGE. THE APPELLANT WAS OWNING THE SHARES OF KHOOBSURAT AND EMERALD COM MERCIAL IS EVIDENCED BY THE BALANCE-SHEET FILED BY THE APPELLANT AS ON 31.3.200 3 ALONG WITH THE RETURN OF INCOME FOR A.Y. 2003-04. THE APPELLANT HAS FILED AL L THE DOCUMENTS IN THE FORM OF CONTRACT NOTES, BILLS, BANK STATEMENT AND BALANCE S HEET TO PROVE THE PURCHASE AND SALE OF AFORESAID SHARES, HOWEVER, THE A.O. HAS NOT BROUGHT ANYTHING POSITIVE ON THE RECORD TO CONTROVERT EVIDENCES FILED BY THE APP ELLANT AND IT HAS NOT BEEN PROVED BY THE A.O. THAT THE DOCUMENTARY EVIDENCES F ILED BY THE APPELLANT TO DISCHARGE HER PRIMARY ONUS, WERE THE FALSE OR FICTI TIOUS DOCUMENTS. THE SUSPICION CANNOT REPLACE THE REAL EVIDENTIARY DOCUMENTS. THE A.O. HAS NOT BROUGHT ANYTHING ON RECORD TO SUBSTANTIATE HIS CONCLUSION THAT THE S ELLING BROKER, M/S. SANTOSH KUMAR KEJRIWAL SECURITIES (P) LTD. HAS ACCOMMODATED THE SALE ENTRIES IN FAVOUR OF THE APPELLANT. ON THE OTHER HAND, AS PER ASSESSMENT RECORD, THE CSE HAS CONFIRMED THE SALE EXECUTED BY THE BROKER ON BEHALF OF THE APPELLANT. IN THE CIRCUMSTANCES, I AM OF THE OPINION THAT THE A.O. WA S NOT JUSTIFIED IN NOT ACCEPTING THE LONG TERM CAPITAL GAIN OF RS.11,56,555/- RETURN ED BY THE APPELLANT AND IN TAXING THE SALE PROCEEDS OF RS.12,17,800/- U/S. 68 OF THE I.T. ACT. 4. HENCE THE DEPARTMENT IS IN FURTHER APPEAL BEFOR E THE TRIBUNAL. 5. DURING THE COURSE OF HEARING, THE LD. DEPARTMEN TAL REPRESENTATIVE SUBMITTED THAT THE LD. C.I.T.(A) IS NOT JUSTIFIED TO DELETE T HE ADDITION MADE BY THE A.O. BY CONSIDERING THAT THE ASSESSEE NEVER OWNED THE SCRIP S OF M/S. KHOOBSURAT LTD. AND M/S. EMERALD COMMERCIAL LTD. AND HENCE LTCG SHOWN BY THE ASSESSEE IN REGARD TO THE ABOVE TWO SCRIPS AGGREGATING TO RS.12,17,800/- WAS NOT GE NUINE LTCG OF THE ASSESSEE. THE LD. DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT THE ASSESSEE COULD NOT ESTABLISH THAT SHE PURCHASED THE ABOVE TWO SCRIPS OUT OF WHIC H SHE CLAIMED THE CAPITAL GAINS. THE LD. DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED T HAT THE LD. C.I.T.(A) ACCEPTED FRESH EVIDENCES BY WAY OF LETTER FROM THE SHARE BROKER, I .E. M/S. I.C.BOID & CO. WITHOUT GIVING OPPORTUNITY TO THE A.O. AND THUS VIOLATED RULE 46A OF THE I.T. RULES. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ORDE R OF THE A.O. SHOULD BE CONFIRMED BY REVERSING THE ORDER OF THE LD. C.I.T.(A). 5 6. ON THE OTHER HAND, THE LD. A/R OF THE ASSESSEE SUPPORTED THE ORDER OF THE LD. C.I.T.(A). HE SUBMITTED THAT THE ASSESSEE MADE PUR CHASES OF THE SCRIPS OF M/S. KHOOBSURAT LTD. NUMBERING 2000 SHARES ON 21/3/2003 FOR RS.55,360/- AND 500 SHARES OF M/S. EMERALD COMMERCIAL LTD. ON 24/3/2003 FOR RS .5,888/- AND REFERRED PAGES 3 TO 6 OF THE PAPER BOOK, WHICH ARE THE COPIES OF CONTRACT NOTES OF PURCHASE OF SHARES THROUGH BROKER M/S. I.C. BOID & CO. THE LD. A/R FURTHER SU BMITTED THAT THE PAYMENTS WERE MADE THROUGH ACCOUNT PAYEE CHEQUES AND REFERRED PAGE-7 O F THE PAPER BOOK TO SUBSTANTIATE HIS SUBMISSION. THE LD. A/R FURTHER SUBMITTED THAT THE SAID SHARES WERE SOLD THROUGH THE BROKER M/S. SANTOSH KR. KEJRIWAL SECURITIES (P) LTD., WHICH IS A REGISTERED BROKER OF CALCUTTA STOCK EXCHANGE AND REFERRED PAGES 14 TO 17 OF THE PAPER BOOK, WHICH ARE THE COPIES OF CONTRACT NOTES FOR THE SALE OF SHARES. T HE LD. A/R SUBMITTED THAT THE SALE PROCEEDS WERE ALSO REALIZED BY THE ASSESSEE BY ACCO UNT PAYEE CHEQUES. THE LD. A/R FURTHER SUBMITTED THAT NO ADDITIONAL EVIDENCES WERE FILED BY THE ASSESSEE BEFORE THE LD. C.I.T.(A) AND TO SUBSTANTIATE HIS SUBMISSION, HE RE FERRED PARA-6 OF THE ORDER OF THE LD. C.I.T.(A). THE LD. A/R SUBMITTED THAT THE LD. C.I. T.(A) HAS CATEGORICALLY STATED THAT ON PERUSAL OF ASSESSMENT FOLDER HE FOUND THE COPIES OF THE REPLIES OF M/S. I.C. BOID & CO. ON RECORD CONFIRMING THAT THE ASSESSEE PURCHASED SHARE S FROM IT. HE FURTHER SUBMITTED THAT THE SAID BROKER ALSO CONFIRMED THAT THE SHARES SOLD TO THE ASSESSEE WERE PURCHASED FROM M/S. AGARWAL BROKERAGE (P) LTD. THE LD. A/R S UBMITTED THAT THE OTHER BROKER M/S. SANTOSH KR. KEJRIWAL SECURITIES (P) LTD., THROUGH W HOM THE ASSESSEE SOLD SHARES, ALSO CONFIRMED TO THE A.O. THAT IT SOLD 2000 SHARES OF M /S. KHOOBSURAT LTD. ON 15/10/2004 AND 500 SHARES OF M/S. EMERALD COMMERCIAL LTD. ON 1 3/12/2004. THE LD. A/R FURTHER SUBMITTED THAT THE AFORESAID BROKER ALSO MENTIONED IN THE SAID LETTER TO THE A.O. THE TRADE NO. THE LD. A/R ALSO REFERRED PAGES 18 TO 48 OF THE PAPER BOOK, WHICH ARE COPIES OF FOLLOWING DECISIONS RELIED UPON BY HIM :- A) CIT VS. KORLAY TRADING CO. LTD. [232 ITR 820] B) CIT VS. CURRENCY INVESTMENT CO. LTD. [241 ITR 494] C) CIT VS. CARBO INDUSTRIAL HOLDINGS LTD. [244 I TR 422] D) CIT VS. EMARALD COMMERCIAL LTD. [250 ITR 539 ] E) ANUP KR. JAISWAL [ITA NO. 1678/KOL/04] 6 F) MUKESH R MAROLIA [6 SOT 247] THE LD. A/R SUBMITTED THAT THE ORDER OF THE LD. C.I .T.(A) ACCEPTING THE LTCG SHOWN BY THE ASSESSEE ON THE ABOVE TWO SCRIPS IS JUSTIFIED A ND, ACCORDINGLY, HIS ORDER SHOULD BE CONFIRMED. 7. WE HAVE CAREFULLY CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW AND THE SUBMISSIONS OF THE LD. REPRESENTATIVES OF THE PARTI ES. WE HAVE ALSO CAREFULLY PERUSED THE RELEVANT PAGES OF THE PAPER BOOK TO WHICH OUR A TTENTION WAS DRAWN AND ALSO THE CASES CITED BEFORE US. VIDE GROUND NO.1, THE DEPARTMENT AGITATED THAT THE LD. C.I.T.(A) ERRED IN CONSIDERING THE FRESH EVIDENCE BY WAY OF LETTER FROM M/S. I.C. BOID & CO., SHARE BROKER, CONFIRMING PURCHASE OF SCRIPS OF THE AFORES AID TWO COMPANIES BY THE ASSESSEE IN VIOLATION OF RULE 46A OF I.T. RULES. IN THIS REGAR D, WE FIND THAT THE LD. C.I.T.(A) IN PARA-6 OF THE IMPUGNED ORDER HAS CATEGORICALLY MENTIONED T HAT HE ON PERUSAL OF THE ASSESSMENT FOLDER OBSERVED THAT THE REPLY OF THE SAID SHARE B ROKER WAS ON RECORD AND IN THE SAID REPLY, M/S. I.C. BOID & CO. CONFIRMED THAT THE SHAR ES OF THE AFORESAID TWO COMPANIES SOLD BY IT ON BEHALF OF THE ASSESSEE WERE PURCHASED BY T HE ASSESSEE FROM M/S. AGARWAL BROKERAGE (P) LTD., WHICH WAS ALSO A REGISTERED SHA RE BROKER OF CALCUTTA STOCK EXCHANGE. DURING THE COURSE OF HEARING, THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT CONTROVERT THE ABOVE OBSERVATION OF LD. C.I.T.(A) BY ADDUCING ANY EVIDENCE. IN THIS VIEW OF THE MATTER, WE DO NOT FIND ANY MERIT IN THE ALLEGATION OF THE A.O. THAT THE LD. C.I.T.(A) ACTED ON FRESH EVIDENCE. 8. NOW COMING THE SECOND GROUND AGAINST DELETION O F ADDITION OF RS.12,17,800/- BY THE LD. C.I.T.(A), WHICH WAS MADE BY THE A.O. U/S. 68 OF THE ACT DENYING THE ASSESSEES CLAIM OF LTCG, WE FIND THAT IN THE PAPER BOOK PAGES 3 TO 7, THE ASSESSEE HAS FURNISHED COPIES OF CONTRACT NOTES OF PURCHASE OF SCRIPS OF 2 000 SHARES OF M/S. KHOOBSURAT LTD. AND SCRIPS OF 500 SHARES OF M/S. EMERALD COMMERCIAL LTD. THROUGH THE BROKER M/S. I.C. BOID & CO. ON 21/3/2003 AND 24/3/2003 RESPECTIVELY AND BANK STATEMENT EVIDENCING PAYMENT BY ACCOUNT PAYEE CHEQUES. THESE SHARES OF T HE AFORESAID TWO COMPANIES WERE SUBSEQUENTLY SOLD BY THE ASSESSEE ON 15/10/2004 AND 13/12/2004 THROUGH THE BROKER M/S. SANTOSH KR. KEJRIWAL SECURITIES (P) LTD. AND R ECEIVED PAYMENTS THROUGH ACCOUNT 7 PAYEE CHEQUES OF THE SUMS OF RS.9,75,400/- AND RS.2 ,42,400/- RESPECTIVELY. COPIES OF CONTRACT NOTES IN RESPECT OF THE ABOVE TRANSACTIONS ARE PLACED ON PAGES 14 TO 17 OF THE PAPER BOOK. THE ASSESSEE, ACCORDINGLY, CLAIMED LTCG ON SUCH SALE OF SHARES. HOWEVER, THE A.O. ALLEGED THAT THE ASSESSEE NEVER OWNED THE ABOVE SCRIPS AND M/S. SANTOSH KR. KEJRIWAL SECURITIES (P) LTD. HAD ACCOMMODATED ENTRI ES IN FAVOUR OF THE ASSESSEE. HE, THEREFORE, HELD THE TRANSACTIONS AS BOGUS AND CONSI DERED THE TOTAL SUM OF RS.12,17,800/- AS UNEXPLAINED CREDIT IN THE BOOKS OF THE ASSESSEE, WHICH HE ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS INCOME FROM OTHER SOURCES. WE FU RTHER FIND THAT THE A.O. HAD MADE VERIFICATION OF SALE OF SHARES FROM CALCUTTA STOCK EXCHANGE, WHO VIDE LETTER ADDRESSED TO THE A.O. SUBMITTED THE TRADE DETAILS EXECUTED BY THE BROKER M/S. SANTOSH KR. KEJRIWAL SECURITIES (P) LTD. AND CONFIRMED THE SALE TRANSACTIONS IN THE SCRIPS OF THE AFORESAID TWO COMPANIES. ON THE ABOVE FACTS, WE FI ND MERIT IN THE OBSERVATION OF LD. C.I.T.(A) THAT IF THE ASSESSEE WAS NOT HOLDING THE SHARES, HOW COULD THE SALE OF THOSE SHARES BE EFFECTED, AS EVIDENCED BY THE CONTRACT NO TES ISSUED BY THE SELLING BROKER AND ALSO CONFIRMED BY THE STOCK EXCHANGE. MOREOVER, AS RIGHTLY POINTED OUT BY THE LD. C.I.T.(A) AND COULD NOT BE CONTROVERTED BY THE DEPA RTMENT BEFORE US, THE ASSESSEE WAS OWNING THE SHARES OF M/S. KHOOBSURAT LTD. AND M/S. EMERALD COMMERCIAL LTD. IS EVIDENCED BY THE BALANCE SHEET OF THE ASSESSEE AS O N 31/3/2003 ALONG WITH THE RETURN OF INCOME FOR A.Y. 2003-04. BEFORE US THERE IS NO SUC H DOCUMENT OR THE LD. DEPARTMENTAL REPRESENTATIVE COULD GIVE ANY INFORMATION ABOUT NON -ACCEPTANCE OF THE SAID BALANCE SHEET BY THE DEPARTMENT WHILE FRAMING ASSESSMENT IN THE CASE OF THE ASSESSEE FOR A.Y. 2003-04. IT IS ALSO NOT THE CASE OF THE DEPARTMENT THAT THE EVIDENCES FILED/PRODUCED BY THE ASSESSEE BEFORE THE DEPARTMENT WERE FALSE OR FICTITIOUS DOCUMENTS. FURTHER, THE A.O., EXCEPT ALLEGING THAT THE ASSESSEE DID NOT OWN THE SCRIPS OF THE AFORESAID TWO COMPANIES, COULD NOT BRING ON RECORD ANY EVIDENCE T O SUBSTANTIATE HIS CONCLUSION THAT THE BROKER M/S. SANTOSH KR. KEJRIWAL SECUIRITIES (P) LT D. HAS ACCOMMODATED THE SALE ENTRIES IN FAVOUR OF THE ASSESSEE. IN THIS VIEW OF THE MATT ER, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. C.I.T.(A) IN ACCEPTING THE LTC G CLAIMED BY THE ASSESSEE IN HER RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATI ON. WE, THEREFORE, UPHOLD HIS ORDER DELETING THE ADDITION OF RS.12,17,800/-, WHICH WAS MADE BY THE A.O. U/S. 68 OF THE ACT. 8 9. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. 4 !3 '5! 6 5% 7 48 THIS ORDER IS PRONOUNCED IN OPEN COURT ON 30.07.2010. SD/- SD/- ( . .. . . .. . ) !' ( . . . . . . . . ) (C.D.RAO) , ACCOUNTANT MEMBER (B.R.MITTAL) , JUDICIAL MEMBER ( (( ( ' ' ' ') )) ) DATE: 30-07-2010 !3 1 /$$9 :!9';- COPY OF THE ORDER FORWARDED TO : 1. +, / THE APPELLANT : A.C.I.T., CIRCLE-32, KOLKATA. 2 /0+, / THE RESPONDENT : AMITA TAINWALA, 14-B, CAMAC STREET, KOL-700 017 3. $3% () : THE CIT(A)-XIX, KOLKATA. 4. $3%/ THE CIT, KOL- 4. @$7 /$% / DR, ITAT, KOLKATA BENCHES, KOLKATA 5. GUARD FILE . 09 /$/ TRUE COPY, !3%5/ BY ORDER, (DKP) B C / DEPUTY REGISTRAR .