The ACIT, Circle-3, Surat V. Shri Rajendrakumar Ratilal Jariwala, Surat

ITA 1753/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9374 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-12-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 08-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAGENDRA SINGH
• Assessee Lawyers: R N VEPARI; H R VEPARI ARS
• Keywords: Unexplained cash credit; Capital asset; Income from undisclosed sources; Corroborative evidences
• Section: 143(3); 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE S/SHRI RAJPAL YADAV, JM, & MANISH BORAD, AM. ITA NOS.1753 /AHD/2012 ASST. YEAR: 2005-06 ACIT, CIRCLE-3, SURAT VS. RAJENDRAKUMAR R. JARIWALA, 7, ANKUR NAGAR SOCIETY, NR. SWAMI VIVEKANAND BRIDGE, ADAJAN PATIYA, ADAJAN SURAT. APPELLANT RESPONDENT PAN ABGPJ 1048J AND ITA NOS.1754 /AHD/2012 ASST. YEAR: 2005-06 ACIT, CIRCLE-3, SURAT VS. R ESHMABEN R. JARIWALA, 7, ANKUR NAGAR SOCIETY, NR. SWAMI VIVEKANAND BRIDGE, ADAJAN PATIYA, ADAJAN SURAT. APPELLANT RESPONDENT PAN ACPPJ7236A APPELLANT BY SHRI NAGENDRA SINGH, SR.DR RESPONDENT BY SHRI R. N. VEPARI & H.R. VEPARI, ARS DATE OF HEARING: 2/12/2015 DATE OF PRONOUNCEMENT: 29 /02 /2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . ITA NO. 1753 & 1754/AHD/2012 ASST. YEAR 2005-06 2 THESE TWO APPEALS BY THE REVENUE ARE DIRECTED AGAI NST TWO SEPARATE ORDERS OF CIT(A)-II, SURAT DATED 29.05.201 2. ASSESSMENTS WERE FRAMED U/S 143(3) R.W.S. 254 OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) FOR ASST. YEAR 2005-06 ON 30.12.2001 . THE ONLY COMMON ISSUE IN BOTH THESE APPEALS OF REVENUE IS AS REGARDS TO THE ORDER OF LD. CIT(A) I, IN DIRECTING THE ASSESSING OFFICER TO TREAT THE PROFIT ON SALE OF SHARES AS SHORT TERM CAPITAL GAIN S SUBJECT TO TAX @ 10% AS PER PROVISIONS OF SEC. 111A OF THE ACT, INST EAD OF ADDITION(S) MADE BY ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CREDITS U/S 68 OF THE ACT, AS ASSESSEES UNACCOUNTED INCOME BEING INTRODUCED IN THE BOOKS OF ACCOUNTS UNDER GAINS OF NON-GENUINE PU RCHASES/SALES OF TRANSACTIONS OF SHARES OF M/S SEAGULL LEAFIN LTD. ( IN SHORT SSL). REVENUE HAS RAISED COMMON GROUND EXCEPT THE CHANGE IN THE AMOUNTS IN BOTH THE APPEALS. FOR THE SAKE OF BREVIT Y WE REPRODUCE THE GROUND RAISED BY THE REVENUE IN ITA NO.1753/AHD /2012 MENTIONED HEREUNDER :- [1] ON THE FACTS AND CIRCUMSTANCE OF THE CASE A ND IN LAW, THE LD. CIT(A)- I, SURAT HAS ERRED IN DELETING THE ADDITION OF RS.4 9,66,501/-, WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE FAILED TO P ROVE THAT THIS IS NOT AN OFF MARKET DEAL AND SUBMISSIONS HAVE NOT BEEN MA DE BY THE ASSESSEE IN SUPPORT OF THE CLAIM U/SLLLA. [2] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. [3] IT IS, THEREFORE, PRAYED THAT THE ORDER OF T HE CIT(A) MAY BE SET-SIDE AND THAT OF ASSESSING OFFICER MAY BE RESTORED TO TH E ABOVE EXTENT. 2. IN THE CASE OF RESHMA R. JARIWALA IN ITA NO.1754 /AHD/2012 ADDITION MADE BY ASSESSING OFFICER WAS RS.49,72,760 /-. SINCE THE ITA NO. 1753 & 1754/AHD/2012 ASST. YEAR 2005-06 3 GROUNDS IN BOTH THE APPEALS ARE SIMILAR, WE THEREFO RE, ADJUDICATE ITA NO.1753/AHD/2012 AND THE DECISION TAKEN IN THIS AP PEAL WILL APPLY TO ITA NO.1754/AHD/2012. 3. ITA NO.1753/AHD/2012 FOR ASST. YEAR 2005-06. 3.1 BRIEFLY STATED FACTS ARE THAT ASSESSEE IS AN IN DIVIDUAL AND FILED HIS RETURN OF INCOME FOR ASST. YEAR 2005-06 DECLARI NG TOTAL INCOME AT RS.42,59,790/- INCLUDING SHORT TERM CAPITAL GAIN OF RS.39,54,628/-. ORIGINAL ASSESSMENT U/S 143(3) OF THE ACT WAS FINAL IZED ON 17.12.2007 DETERMINING TOTAL INCOME AT RS.62,71,661 /-. REVENUE LOST IN APPEAL BEFORE CIT(A) VIDE HIS ORDER DATED 16.10. 2008. REVENUE FILED APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL V IDE ITS ORDER IN ITA NO.3323/AHD/2008 RESTORED THE MATTER BACK TO THE FI LE OF ASSESSING OFFICER FOR FRESH ADJUDICATION. THEREAFTER NOTICE U /S 142(1) OF THE ACT WAS ISSUED ON 28..6.2011 SEEKING DETAILS OF PURCHAS ES OF EQUITY SHARES OF 166500 EQUITY SHARES FOR RS.10,17,493/-. OUT OF 166500 SHARES ASSESSEE SOLD 166499 EQUITY SHARES THROUGH M /S GRISHMA SECURITIES PVT. LTD. FOR TOTAL SUM OF RS.49,66,501/ -, THE RESULT OF THESE PURCHASE/SALES TRANSACTION WAS SHORT TERM CAPITAL G AIN OF RS.39,49,008/-. IN SUPPORT OF THE PURCHASE AND SALE OF THE EQUITY SHARES ASSESSEE FURNISHED CONTRACT NOTES FOR PURCHA SE AND SALE ALONG WITH COPY OF DEMAT A/C AND BANK STATEMENT FIG URING OUT SALE AND PURCHASE AND EQUITY SHARES, AND AMOUNT PAID/REC EIVED TOWARDS PURCHASE AND SALE. HOWEVER, THE ASSESSING OFFICER W AS NOT SATISFIED WITH THE REPLY OF ASSESSEE AND WENT AHEAD TO MAKE A DDITION AGAIN U/S 68 FOR RS.49,66,501/- BEING SALE CONSIDERATION RECE IVED FROM SALE OF ITA NO. 1753 & 1754/AHD/2012 ASST. YEAR 2005-06 4 SHARES BY OBSERVING FOLLOWING IN HIS ASSESSMENT ORD ER U/S 143(3) R.W.S. 254 OF THE ACT- 10. IN THE INSTANT CASE, THE FOLLOWING FACTS C OME LIGHT ON A DETAILED ANALYSIS OF THE SHARE TRANSACTIONS AND THE SUBMISSIONS OF THE ASSES SEE: (I) THE COMPANY SEAGULL IS A PENNY SCRIP AND NO T A RENOWNED SCRIP AND AS PER THE LETTER OF STOCK EXCHANGE, THE SAME IS NOT LISTED. T HE ASSESSEE HAS FAILED TO PROVE THAT THIS IS NOT AN OFF MARKET TRANSACTION. (III) MOREOVER, AS APPARENT FROM THE RETURNED INCOM E IT IS SEEN THAT THE ASSESSEE HAS NOT ENTERED INTO ANY SHARE TRANSACTION OR SHARE INVESTMENT DURING THE YEAR OTHER THAN THE ABNORMAL SHARE PROFIT SHOWN ON THE SALE OF SEAGUL SHARES. (RV) LOOKING TO THE SUBSTANTIAL PROFIT ON A PENN Y SCRIP WITHIN A VERY SHORT TIME, THE SAID TRANSACTION SHOULD BE TAXED AS ADVENTURE IN TH E NATURE OF TRADE AND THEREFORE CANNOT BE CONSIDERED AS AN INVESTMENT UND ER THE HEAD CAPITAL GAINS. EVEN IF IT IS CONSIDERED AS SHORT TERM CAPIT AL GAIN, SINCE THE TRANSACTION IS NOT THROUGH STOCK EXCHANGE WITH PAYMENT OF STT A ND HENCE, THE BENEFIT OF CONCESSIONAL RATE OF INCOME-TAX CANNOT BE ALLOWED. 11 IN VIEW OF THE ABOVE FINDINGS, THE ASSESSEE'S C LAIM IS REJECTED AND THE SUM CREDITED IN THE BOOKS OF ACCOUNTS OF RS. 49,66,501/ - AS SALE CONSIDERATION OF SHARES IS TREATED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. 4. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE CIT(A) AND LD. CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING O FFICER BY OBSERVING AS FOLLOWS IN HIS APPELLATE ORDER :- 6. I HAVE CONSIDERED THE FACTS OF THE CASE AN D THE BASIS OF ADDITION MADE BY AO. THERE IS NO NEED TO REPEAT THE FACTS AS MY PREDECES SOR CIT(A) VIDE HIS ORDER DATED 29.07.2008 HAS ALREADY DISCUSSED THE RELEVANT FA CTS AND ISSUES INVOLVED IN DETAIL AND ALLOWED THE APPEAL ALSO. THERE ARE NO NEW FACTS BROUGHT ON RECORD BY AO DURING ASSESSMENT PROCEEDINGS TO COUNTER THE DOCU MENTS / EVIDENCE FILED BY APPELLANT AS DIRECTED BY HON'BLE ITAT. THE AO FAILE D TO ESTABLISH THAT THE APPEL ANT HAS NOT BEEN ABLE TO FULFILL ALL THE CONDITIONS AS SET BY HON'BLE ITAT. MOREOVER, THE JURISDICTIONAL ITAT IN THE CASE OF SMT. RITABEN PAN WALA AND SMT. MITABEN PANWALA VIDE ORDER DATED 31.05.2011 IN ITA NO.4082 & 408 3/AHD/2008 HAS DECIDED THE ISSUE ON SIMILAR SET OF FACTS AGAINST REVENUE. IN THAT CASE ALSO SHARES OF SEAGULL LEAFIN LTD. HAVE BEEN SOLD TO GRISHMA SECURITIES PV T. LTD. AND THE BROKER IS SAME I.E. RAJESH 1M. JAVERI. IN THAT CASE ALSO BENEFIT O F CONCESSIONAL TAXATION U/S.LLLA WAS NOT ALLOWED BY AO. HON'BLE ITAT, HOWEVER, AFTER DIS CUSSING ALL THE RELEVANT ISSUES, ITA NO. 1753 & 1754/AHD/2012 ASST. YEAR 2005-06 5 HAS DISMISSED THE APPEAL FILED BY DEPARTMENT AND ALLOWED THE APPEAL OF ASSESSEE, 6.1 IN VIEW OF ABOVE, RESPECTFULLY FOLLOWING THE DECISIONS OF MY PREDECESSOR AS WELL AS JURISDICTIONAL ITAT, ADDITIO N MADE BY AO IS DELETED. 5. AGGRIEVED, REVENUE IS NOW IN APPEAL BEFORE THE T RIBUNAL. 6. THE LD. DR RELIED ON THE ORDER OF ASSESSING OFFI CER AND DID NOT BRING ANY NEW MATERIAL EVIDENCE ON RECORD. 7. THE LD. AR SUBMITTED THAT IN ORDER TO PROVE THE GENUINENESS OF THE TRANSACTION GIVING RISE TO SHORT TERM CAPITAL G AIN AS WELL AS FURNISHING OF SUPPORTING EVIDENCE FOR PURCHASE AND SALE OF SHARES, TO PROVE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION FOLLOWING DETAILS AND DOCUMENTS WERE FURNISHED BEFO RE LOWER AUTHORITIES :- 1. FOR CALCULATION OF SHORT TERM CAPITAL GAIN ON SHARES TRANSACTIONS, SEPARATE CALCULATION SHEET IS ENCLOSED HEREWITH. 2. SHARES A/C. FROM YOUR HUMBLE ASSESSEE'S AUDIT ED BOOKS OF ACCOUNT IS ENCLOSED HEREWITH. 3. ZEROX COPIES OF SHARE PURCHASE BILLS OF M/S. R AJESH N. JHAVERI ARE ENCLOSED HEREWITH. 4. CONFIRMATION ACCOUNT COPY OF M/S. RAJESH N. JH AVERI IS ENCLOSED HEREWITH. 5. ZEROX COPIES OF SHARE SOLD BILLS OF M/S. GRISH MA SECURITIES PVT. LTD. ARE ENCLOSED HEREWITH. 6. CONFIRMATION ACCOUNT OF M/S. GRISHMA SECURITIE S PVT. LTD. IS ENCLOSED HEREWITH. ITA NO. 1753 & 1754/AHD/2012 ASST. YEAR 2005-06 6 7. CERTIFICATE GIVEN BY M/S. GRISHMA SECURITIES PVT. LTD. REGARDING SECURITY TRANSACTION TAX DEDUCTED FROM SALE TRANSAC TIONS IS ENCLOSED HEREWITH. 8. ZEROX COPY OF FORM NO.LODB SHOWING PAYMENT OF STT MADE IS ENCLOSED HEREWITH. 9. ZEROX COPY OF DEMAT ACCOUNT WITH KHANDWALA INT ERGRATED FINANCIAL SERVICES PVT. LTD. IS ENCLOSED HEREWITH. 10. ZEROX COPY OF BANK PASSBOOK OF DENA BANK WHERE IN SUCH SHARES PURCHASE-SALES TRANSACTIONS HAVE BEEN REFLECTED IS ENCLOSED HEREWITH. 1. CONFIRMATION ACCOUNT OF M/S RAJESH N. JHAVERI IS ENCLOSED HEREWITH. 2. COPY OF DEMAT ACCOUNT IS ENCLOSED HEREWITH. 8. LD. AR FURTHER SUBMITTED THAT ALL THE ABOVE DETA ILS SUFFICIENTLY PROVED BEYOND DOUBT THAT ASSESSEE PURCHASED EQUITY SHARES THROUGH M/S RAJESH N. ZAVERI (AHMEDABAD STOCK EXCHANGE) AND PAID FOR THE PURCHASE BY ACCOUNT PAYEE CHEQUE, TRANSFERRED THE P URCHASED SHARES IN THE DEMAT ACCOUNT AND THEREAFTER SOLD THE SHARES THROUGH M/S GRISHMA SECURITIES P. LTD., A MEMBER OF BOMBAY STOCK EXCHANGE (BSE)REGISTERED BY SEBI, RECEIVED SALE CON SIDERATION THROUGH BANK ACCOUNT AND ALSO PLACED ON RECORD THE PROOF THAT SSL WAS LISTED WITH BSE. LD. AR FURTHER SUBMITTED THAT IN ALL ASPECTS THE ASSESSEE HAS FULFILLED THE CONDITIONS LAID DOWN IN THE PROVISIONS OF SECTION 111A OF THE ACT AND THEREFORE, THE SHORT TE RM CAPITAL GAINS WHICH IS CHARGEABLE TO TAX @ 10% AND ALSO MENTIONED THAT ASSESSING OFFICER WAS NOT CORRECT IN MAKING THE ADD ITIONS U/S 68 OF THE ACT AS ALL THE INFORMATIONS ABOUT THE SOURCE OF CREDIT IN THE FORM OF SHARES WAS AVAILABLE AND GENUINENESS, IDENTITY, CRE DITWORTHINESS OF ITA NO. 1753 & 1754/AHD/2012 ASST. YEAR 2005-06 7 THE TRANSACTIONS WAS ALSO PROVED WITH SUPPORTING EV IDENCES. LD. AR FURTHER SUBMITTED THAT SIMILAR ISSUE ABOUT SALE OF SHARES OF SSL WAS DEALT BY THE TRIBUNAL IN ITA NO.4082/AHD/2008 FOR A SST. YEAR 2005-06 IN THE CASE OF ACIT VS. RITABN BHUPENDRA PANWALA VI DE ORDER DATED 31.5.2011 AND APPEAL OF REVENUE WAS DISMISSED AND T HE ORDER OF LD. CIT(A) WAS RESTORED AND TRANSACTION OF SHORT TERM C APITAL GAIN WAS ACCEPTED TO BE COVERED U/S 111A OF THE ACT. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE BEFORE US IS TO EXAMINE AS TO WHETHER THE TRANSACTIONS OF PURCHASE/SALE OF SHARES OF SSL ENTE RED INTO BY THE ASSESSEE HAS RESULTED IN SHORT TERM CAPITAL GAIN TA XABLE @ 105 AS PER PROVISIONS OF SECTION 111A OF THE ACT AND ALSO TO EXAMINE WHETHER THE SALE CONSIDERATION RECEIVED FROM SALE O F SHARES OF RS.49,66,501/- IS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT.. 10. FROM GOING THROUGH THE PROCEEDINGS BEFORE LOWER AUTHORITIES AND DOCUMENTS PLACED ON RECORD FORMING PART OF THE PAPER BOOK WE ARE OF THE CONSIDERED OPINION THAT THE SALE CONSIDE RATION RECEIVED FROM SALE OF EQUITY SHARES AT RS.49,66,501/- CANNOT BE TREATED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT BECAUSE A SSESSEE HAS OFFERED COMPLETE EXPLANATION ABOUT THE NATURE AND S OURCE OF THE CREDIT WHICH HAS HAPPENED IN THE YEAR UNDER APPEAL THROUGH BANK TRANSACTION AND COMPLETE DETAILS OF M/S GRISHMA SEC URITIES P. LTD. (FROM WHOM THE SALE CONSIDERATION OF RS.49,66,501/- IS RECEIVED) IN THE FORM OF ITS MEMBERSHIP NO., CONTRACT NOTE, SEBI REGISTRATION NO., PAN AND BANK DETAILS WERE MADE AVAILABLE TO THE ASS ESSING OFFICER. ITA NO. 1753 & 1754/AHD/2012 ASST. YEAR 2005-06 8 11. AS REGARDS INCOME OF SHORT TERM CAPITAL GAIN IS CONCERNED AS TO WHETHER IT COMES WITHIN THE PURVIEW OF SECTION 111A OF THE ACT WE FIND THAT IN THE DECISION OF CO-ORDINATE BENCH REFE RRED AND RELIED BY THE LD. AR IN ITA NO.4082/AHD/2008 (SUPRA) THE ISSU E HAS BEEN EXAMINED AND DECIDED AT LENGTH. WE FIND IT PERTINEN T TO GO THROUGH THE DECISION OF CO-ORDINATE BENCH IN ITA NO.4082/A HD/2008 (SUPRA) WHEREIN FOLLOWING GROUND WAS RAISED BY THE REVENUE :- 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DIRECTION TO ALLOW THE BENEFIT OF CONCESSI ONAL RATE OF TAXATION U/S 111A OF THE INCOME TAX ACT, 1961 ON CAPITAL GAIN RS .38,51,861/- ON THE TRANSACTIONS OF SHARES ON WHICH NO SECURITY TRANSAC TION TAX HAS BEEN PAID BY THE ASSESSEE. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. ON THIS ISSUE.' THE ABOVE GROUND HAS BEEN DECIDED BY THE CO-ORDINAT E BENCH BY OBSERVING AS UNDER :- 7. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED T HE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW, THERE IS NO CASE FOR INTERFERENCE IN THE ORDER O LD. CIT(A) PASSED ON 16.10.2008 WHEREIN HE HAS TREATED THE SUM OF RS. 3,654.79 AS STT ON THE BASIS OF CERTIFICATE AND BILLS ISSUED BY THE BROKER. FOR THE SAKE OF CONVENIENCE, WE REFER TO SECTION 111A AS UNDER: '111A: (1) WHERE THE TOTAL INCOME OF AN ASSESSEE INCLUDES ANY INCOME CHARGEABLE UNDER HT HEAD 'CAPITAL GAINS'' ARISING FORM THE TRANSFER OF A SHO RT TERM CAPITAL ASSET, BEING AN EQUITY SHARE IN A COMPANY OR A UNIT OF AN EQUITY OR IENTED FUND AND- (A) THE TRANSACTION OF SALE OF SUCH EQUITY SHARE OR UNIT IS ENTERED INTO ON OR AFTER THE DATE ON WHICH CHAPTER VII OF THE FINANCE (NO.2) ACT, 2004 COMES INTO FORCE; AND (B) SUCH TRANSACTION IS CHARGEABLE TO SECURITIES TR ANSACTION TAX UNDER THAT CHAPTER; THE TAX PAYABLE BY THE ASSESSEE ON THE TOTAL INCOME SHALL BE THE AGGREGATE OF- ITA NO. 1753 & 1754/AHD/2012 ASST. YEAR 2005-06 9 (I) THE AMOUNT OF INCOME-TAX CALCULATED ON SUCH SHO RT TERM CAPITAL GAINS AT THE RATE OF [FIFTEEN] PER CENT; AND (II) THE AMOUNT OF INCOME TAX PAYABLE ON THE BALANC E AMOUNT OF THE TOTAL INCOME AS IF SUCH BALANCE AMOUNT WERE THE TOTAL INCOME OF THE ASSESSEE;' .............. ............ FROM A READING OF ABOVE SECTION, WE FIND THAT THERE ARE ONLY TWO CONDITIONS TO BE SATISFIED FOR CLAIMING CONCESSIONAL RATE OF TAX. TH E 1STS CONDITION IS THAT TRANSACTION OF SHARES SHOULD HAVE BEEN TAKEN PLACE AFTER FINANCE ACT NO.2 OF 2004 HAS COME INTO FORCE W.E.F. 1ST OCTOBER 2004 AS NOTIFIED IN THE OFFICIAL GAZETTE BY HE CENTRAL GOVE4RNMENT VIDE SO 1058(E), DATED 28 .09.2004. SINCE THE SALE OF SHARES HAVE TAKEN PLACE IN DECEMBER 2004, THE 1ST C ONDITION AS PER SECTION 111A(1)(A) IS SATISFIED. THERE IS NO DISPUTE TO THE EFFECT TH AT SUCH TRANSACTION I.E. SALE OF SHARES IN SEAGULL LEAFIN ARE CHARGEABLE TO STT AS DEPARTMENT HAS NOWHERE ARGUED THAT THEY ARE NOT SO CHARGEABLE. THE ONLY CA SE MADE OUT BY THE REVENUES IS THAT SUCH ST WAS NOT PAID. IN OTHER WORDS, THE CONT ENTION OF THE REVENUE IS THAT THESE SALE OF SHARES ARE CHARGEABLE TO STT BUT THE BROKER HAS NOT DEDUCTED SUCH TAX. IN VIEW OF THIS, THE TRANSACTION BEING CHARGEA BLE TO STT 2ND CONDITION LAID DOWN IN SECTION 111A(1)(B) IS ALSO SATISFIED. SO FAR AS PAYMENT OR RECOVERY O F STT IS CONCERNED, IT CAN BE TAKEN CARE OF BY CHAPTER VI I OF THE FINANCE NO.2 ACT OF 2004 WHICH PROVIDES FOR ASSESSMENT, COLLECTION RECO VERY OF STT. RECOGNIZED STOCK EXCHANGE HAD BEEN EMPOWERED TO COLLECT THE ST T, THE A.O. IS EMPOWERED TO MAKE ASSESSMENT OF SUCH STT AS PER SECTION 102 OF S TT ACT AS PER CHAPTER VII OF THE FINANCE ACT NO.2 OF 2004. THE CLAIM OF THE ASSE SSEE IS THAT SUCH STT HAS BEEN DEDUCTED BY THE BROKER M/S. GARISHMA SECURITIES PVT . LTD. AS PER CERTIFICATE ISSUED BY THEM IS NOT FOUND INCORRECT. THE ONLY CON FUSION REMAINED WAS ABOUT THE WORD USED IN THE BILL ISSUED BY GARISHMA SECURI TIES PVT. LTD. THE SAID BROKER HAD MENTIONED THE WORD 'T/O.DE.CHG' FOR THE SUM OF RS.3654.79 DEDUCTED BY IT AND NOT TREATED BY THE REVENUE AS STT WHEREAS THE B ROKER HAD CLARIFIED BY THE CERTIFICATE ISSUED SUBSEQUENTLY THAT IT IS IN FACT STT. THERE IS NO CONTRARY MATERIAL TO HOLD THAT SUM OF RS.3,654.79 IS NOT IN FACT STT BUT SOME OTHER CHARGES EXCEPT THE APPREHENSION OF THE A.O. WHICH IS NOT FOUND SUB STANTIATED. WE, ACCORDINGLY UPHOLD THE CONTENTION OF THE ASSESSEE AND AS ACCEPT ED BY LD. CIT(A) THAT THE SUM OF RS.3,654.79 IS IN FACT STT DULY DEDUCTED BY THE BROKER FROM THE PAYMENTS MADE TO THE ASSESSEE ON SALE OF SHARES. 8. THE OTHER ISSUE RAISED BY THE LD. D.R. IS THAT T HESE SHARES TRANSACTIONS ARE NOT GENUINE. THE CIT(A) HAS REJECTED THESE CONTENTIONS. FURTHER, THERE IS NO GROUND RAISED BY THE REVENUE ABOUT THE ALLEGED GENUINENESS ACCEPTED BY THE LD. CIT(A). THE REVENUE HAS ONLY CHALLENGED THAT NO STT HAS BEE N PAID ON SALE OF SHARES BY GARISHMA SECURITIES PVT. LTD. WHICH WE HAVE HELD AG AINST THE REVENUE AS ABOVE. WE, ACCORDINGLY DO NOT FIND ANY REASON TO TAKE A DI FFERENT VIEW. AS A RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. ITA NO. 1753 & 1754/AHD/2012 ASST. YEAR 2005-06 10 12. FROM GOING THROUGH THE ABOVE DECISION OF THE TR IBUNAL, WE FIND THAT THE ISSUE IS VERBATIM SIMILAR SO MUCH SO THAT DETAILS OF SHARES HAVE BEEN SOLD THROUGH M/S GRISHMA SECURITIES P. LT D. WHO ALSO IS A BROKER IN THE CASE OF ASSESSEE THROUGH WHOM EQUITY SHARES OF SSL HAVE BEEN SOLD. RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL AND IN VIEW OF OUR DISCUSSION MADE ABOVE, WE DO NOT FIND ANY REASON TO TAKE A DIFFERENT VIEW AND INTERFERE WITH THE ORD ER OF LD. CIT(A). AS A RESULT, GROUND RAISED BY THE REVENUE IS DISMISSED. 13. OTHER GROUNDS ARE OF GENERAL NATURE, WHICH NEED NO ADJUDICATION. 14. IN ITA NO.1754/AHD/2012 WHEREIN FOLLOWING GROU ND OF APPEAL HAVE BEEN RAISED BY THE REVENUE :- [1] ON THE FACTS AND CIRCUMSTANCE OF THE CASE AN D IN LAW, THE LD. CIT(A)- I, SURAT HAS ERRED IN DELETING THE ADDITION OF RS.4 9,72,760/-, WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE FAILED TO P ROVE THAT THIS IS NOT AN OFF MARKET DEAL AND SUBMISSIONS HAVE NOT BEEN MA DE BY THE ASSESSEE IN SUPPORT OF THE CLAIM U/SLLLA. [2] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFF ICER. [3] IT IS, THEREFORE, PRAYED THAT THE ORDER OF T HE CIT(A) MAY BE SET-SIDE AND THAT OF ASSESSING OFFICER MAY BE RESTORED TO TH E ABOVE EXTENT. 15. AS THE GROUNDS OF APPEAL ARE SIMILAR TO THE GRO UNDS OF APPEAL WE DEALT IN ITA NO.1753/AHD/2012, APPLYING THE SAME RATIO OF OUR DECISION WE FIND NO REASON TO INTERFERE WITH THE OR DER OF LD. CIT(A) AND ACCORDINGLY DISMISS THE GROUND OF REVENUE. ITA NO. 1753 & 1754/AHD/2012 ASST. YEAR 2005-06 11 16. OTHER GROUNDS ARE OF GENERAL NATURE, WHICH NEED NO ADJUDICATION. 17. IN THE RESULT, BOTH THE APPEALS OF REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH FEBRUARY, 2016 SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 29/02/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION:16/02/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 22/02/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 29/2/2016 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: