THE ITO, Ward -7(3), Ahmedabad V. SMT. NIPA S. SHAH, Ahmedabad

ITA 1909/AHD/2003

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9239 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 24-08-2009
• Assessment Year: 1998-1999
• Appeal Filed On: 02-05-2003
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHI RAJEEV AGARWAL
• Assessee Lawyers: S N DIVETIA
• Keywords: Share purchase agreement; Corroborative evidences; Accommodation entries; Set aside; Capital Gains
• Section: 54F; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD A BENCH (BEFORE S/SHRI T.K. SHARMA, JUDICIAL MEMBER AND N.S. SAINI, ACCOUNTANT MEMBER) ITA.NO.1909/AHD/2003 [ASSTT.YEAR : 1998-1999] ITO, WARD-7(3) AHMEDABAD. VS. SMT.NEEPA SMIT SHAH 32, JUHU PARK SOCIETY NAVA VADAJ, AHMEDABAD. REVENUE BY : SHI RAJEEV AGARWAL ASSESSEE BY : SHRI S.N.DIVETIA O R D E R PER T.K. SHARMA, JUDICIAL MEMBER : THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER OF THE CIT(A) DATED 19-2 -2003 FOR A.Y.1998-99. 2. THE ASSESSEE FILED REVISED GROUNDS OF APPEAL WHI CH READS AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE OF RS.14,92,650/- ON ACCOUNT OF CASH CREDIT U/S.68 OF THE IT ACT. 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN REJECTING THE AOS ACTION OF DISALLOWING THE ASSESSEES CLAIM OF LONG TERM CAPITAL GAINS. 3. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING THE ASSESSEES CLAIM OF DEDUCTION U/S.54F. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD.CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO. 5. IT IS THEREFORE PRAYED THAT THE ORDER OF THE CI T(A) MAY BE SET ASIDE AND THAT OF THE AO BE RESTORED. 3. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSES SEE OBJECTED TO THE ADMISSION OF REVISED GROUNDS OF APPEAL ON THE GROUN D THAT THE ORIGINAL GROUNDS FILED ALONG WITH APPEAL AND THE REVISED GROUNDS OF APPEAL FILED THEREAFTER ARE NOT ONE AND SAME AND THEY ARE DIFFERENT INASMUCH AS REVISED GROUNDS OF APPEAL RAISES NEW ISSUES AND INVOLVES INVESTIGATION INTO F ACTS AND PURE QUESTIONS OF PAGE - 2 ITA.NO.1909/AHD/2003 -2- FACT, IS NOT PERMISSIBLE. THE LEARNED DR ON THE OT HER HAND SUBMITTED THAT ISSUES AND GROUNDS RAISED AT THE INITIAL STAGE OF F ILING OF APPEAL AND THEREAFTER ARE SIMILAR IN NATURE IN LAW AND ON FACTS AND THE R EVISED GROUNDS OF APPEAL NOTHING BUT DESCRIPTIVE AND CONCISE FORM OF ORIGINA L GROUNDS OF THE APPEAL AND NO PREJUDICE WOULD BE CAUSED TO THE ASSESSEE. ACCORDINGLY, THE REVISED GROUNDS OF APPEAL MAY BE ADMITTED. 4. AFTER HAVING CONSIDERED THE ORIGINAL GROUNDS OF APPEAL AND REVISED ONE, FILED BY THE REVENUE WE FIND ISSUES INVOLVED THEREI N ARE IN FACT SAME AND NOT MUTUALLY EXCLUSIVE SO AS TO CAUSE ANY HARM OR PREJU DICE TO THE ASSESSEE IF THE SAME ARE ADJUDICATED UPON. THE REVISED GROUNDS ARE ACCORDINGLY ADMITTED. 5. COMING TO THE MERIT OF THE CASE, THE ONLY ISSUE RELEVANT FOR ADJUDICATION IS AS REGARDS TO CIT(A) ACTION FOR DELETION OF ADDI TION MADE OF RS.14,92,650/- UNDER SECTION 68 OF THE IT ACT AND DIRECTION TO THE AO TO ALLOW CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 54F OF THE ACT . THE BRIEF FACTS OF THE CASE IN THIS BEHALF ARE THAT THE ASSESSEE FILED RETURN O F INCOME DECLARING TOTAL INCOME AT RS.85,630/- WHICH WAS PROCESSED UNDER SECTION 14 3(1)(A) OF THE ACT. FROM THE RETURN OF INCOME, THE AO NOTED THAT THE ASSESSE HAS SOLD SHARES OF BRILLIANT PORTFOLIOS LTD. ON 13-3-1998 AT THE RATE OF RS.80/- PER SHARE THROUGH M/S.J.K JAIN & CO. AND SALE CONSIDERATION OF RS.13,04,432/- WAS DECLARED BY THE ASSESSEE AS LONG TERM CAPITAL GAIN AND CLAIMED EXEM PTION UNDER SECTION 54F OF THE INCOME-TAX ACT BY MAKING INVESTMENT IN RESIDENT IAL HOUSE. IN THE SCRUTINY ASSESSMENT THEREAFTER, ASSESSEE PRODUCED COPY OF SA VING BANK ACCOUNT NO.4180 OF UNION BANK OF INDIA, SHARE ALLOTMENT LETTER FROM THE SAID BRILLIANT PORTFOLIOS LTD. AND COPIES OF SALES BILLS (CONTRACT NOTE) FROM THE SHARE BROKER. THE ASSESSEE ALSO STATED THAT THE PAYMENT OF RS.13,04,4 32/- WAS RECEIVED THROUGH DEMAND DRAFT AND THE DETAILS THEREOF WERE ALSO FURN ISHED BEFORE THE AO. THE AO ALSO SOUGHT FURTHER INFORMATION AND ALSO MADE WI TH INQUIRY WITH THE BROKER M/S.J.K.JAIN & CO. AND BRILLIANT PORTFOLIOS LTD., A S FOLLOWS: PAGE - 3 ITA.NO.1909/AHD/2003 -3- I) DISTINCTIVE NO., RF NUMBER AND CERTIFICATE NO. OF S HARES SOLD; II) WHETHER THE TRANSACTION WAS DIRECTLY MADE WITH YOU; III) WHO WAS THE BUYER OF THESE SHARES, DETAILED NAME AN D ADDRESSES OF THE BROKER/INVESTOR TO WHOM THESE SHARES WERE SO LD; IV) DETAILS OF PAYMENT MADE WITH DETAILS OF CHEQUE NO., DATE, AMOUNT, NAME OF THE BANK AND THE BRANCH; V) WHETHER ANY OTHER TRANSACTION OF SHARES/DEBENTURES WERE MADE THROUGH YOU BY THE ASSESSEE; IF YES, PLEASE FURNISH THE DETAILS OF THE SAME; VI) WHETHER THE SHARES WERE FULLY PAID AT THE TIME OF D ELIVERY OF THE SHARES; VII) DATE OF DELIVERY OF SHARES THOUGH SOME OF THE INFORMATION WAS FURNISHED, THE V ITAL INFORMATION WITH REGARD TO THE SALE OF THE SHARES AND NAMES OF THE T RANSFEROR AND TRANSFEREE COULD NOT BE OBTAINED FROM THE BRILLIANT PORTFOLIOS LTD. AND BROKER, JK JAIN & CO., AS THEY COULD NOT DO SO AND EXPRESSED THEIR INABILITY. EVEN THE SHARE BROKER M/S.JK JAIN & CO., DENIED OF HAVING KNOWN THE ASSES SEE OR ABOUT THE IMPUGNED SHARE TRANSACTIONS. THE AO DOUBTED THE GE NUINENESS OF SHARE TRANSACTIONS ENTERED INTO BY THE ASSESSEE THAT BRIL LIANT PORTFOLIO LTD. DID NOT FURNISH ANY INFORMATION AS TO THE NAME AND ADDRESS OF THE PERSON TO WHOM THE SHARES WERE TRANSFERRED AND THE DATE OF TRANSFER OF THE SAID SHARES; THAT BROKER STATED THAT HE HAS NOT KNOWN THE ASSESSEE AND NO SU CH TRANSACTION OF ANY SHARES WERE MADE ON BEHALF OF THE ASSESSEE; THAT SHRI BC J AIN HAD INDULGED IN RACKET OF PROVIDING ACCOMMODATION ENTRIES; THAT JAIPUR STO CK EXCHANGE INFORMED THAT THERE WERE NO TRADING OF SHARES OF THE COMPANY IN T HE MONTH OF MARCH, 1998 THE AO ACCORDINGLY PROPOSED TO DISALLOW THE LONG TE RM CAPITAL AND EXEMPTION UNDER SECTION 54F AND PROPOSED TO MAKE TH E ADDITION UNDER SECTION 68 AS UNDISCLOSED INCOME. 6. THE ASSESSEE REPLIED THAT THE PAYMENTS OF SALE P ROCEEDS WERE RECEIVED BY DEMAND DRAFTS, DETAILS OF WHICH WERE FURNISHED; THAT THE SALE TRANSACTION WAS DULY REFLECTED IN THE BOOKS OF THE ASSESSEE; THAT 2 0000 SHARES WERE PURCHASED PAGE - 4 ITA.NO.1909/AHD/2003 -4- FROM BRILLIANT PORTFOLIO PVT. LTD. IN PUBLIC ISSUE ON 17-12-1996 AND THE SHARES WERE ALLOTTED IN THE NAME OF THE ASSESSEE, DETAILS OF WHICH WERE FURNISHED; THAT THE COMPANY HAS NOT REGISTERED THE TRANSFER ON SALE IN ITS BOOKS WOULD NOT JUSTIFY THE CLAIM THAT THE TRANSFER TOOK PLACE ONLY WHEN THE NAME OF THE TRANSFEREE WAS PUT ON THE REGISTERS OF THAT COMPANY ; THAT THE TRANSACTION WAS SUPPORTED BY THE CONTRACT NOTE, DELIVERY OF SHARE C ERTIFICATES, PAYMENT BY DEMAND DRAFTS FROM THE BANK ACCOUNT OF THE SHARE BR OKER. THE AO HOWEVER DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE AND REJECTED THE CLAIM OF THE ASSESSEE AND MADE THE IMPUGNED ADDITIONS. 7. NOT SATISFIED WITH THE ORDER OF THE AO, THE ASSE SSEE WENT BEFORE CIT(A) AND BEFORE WHOM THE ASSESSEE FILED DETAILED SUBMISS IONS WHICH WERE REPRODUCED BY THE CIT(A) PAGE NOS.5 TO 9. CONSIDER ING THE WRITTEN SUBMISSIONS OF THE ASSESSEE AND THE FINDINGS OF THE AO, THE CIT(A) REVERSED THE ORDER OF THE AO AND DIRECTED TO ACCEPT THE CLAI M OF THE ASSESSEE UNDER SECTION 54F OF THE ACT. THE RELEVANT FINDINGS AND OBSERVATIONS OF THE CIT(A) IN THE IMPUGNED ORDER IS AS UNDER: 4. AS REGARDS GENUINENESS OF TRANSFER OF SHARES OF BRILLIANT PORTFOLIOS LTD. BY THE APPELLANT, THE AO HAS BASICA LLY RELIED UPON THE NON-SUPPLY OF INFORMATION BY BRILLIANT PORTFOLIOS L TD. REGARDING THE NAMES AND ADDRESS OF THE TRANSFEREE AND THE DATE OF TRANSFER OFF THE SAID SHARE. THE APPELLANT HAD TAKEN A SEARCH IN THE OFF ICE OF REGISTRAR OF COMPANIES OF DELHI & HARYANA ON 23.12.2002 AND OBTA INED A CERTIFIED COPY OF THE ANNUAL RETURN FILED BY THE SAID COMPANY ALONGWITH THE LIST OF SHAREHOLDERS AND LIST OF SHARES TRANSFERRED FROM WH ICH IT CAN BE SEEN THAT THE DATE OF TRANSFER OF 18000 SHARES IS 16.12. 2000 AND THE NAMES OF THE TRANSFEREES HAVE BEEN FIELD BY THE COMPANY AND THE DETAILS OF SHARES TRANSFERRED HAVE BEEN FILED BEFORE THE REGISTRAR OF COMPANIES. A LETTER WAS ALSO ISSUED BY ME TO THE COMPANY BRILLIANT PORT FOLIOS LTD., ON 15 TH JANUARY, 2003 TO CONFIRM ABOUT THE SALE OF SHARES M ADE BY THE APPELLANT. THE COMPANY HAS REPLIED VIDE ITS LETTER DATED 28.1.2003 SAYING THAT THE COMPANY DOES NOT HAVE DETAILS OF SH ARES SOLD BY THE APPELLANT AS THERE MAY BE A NUMBER OF BUYERS AND IN TERMEDIARIES OF THOSE SHARES BETWEEN NIPA SHAH AND THE ACTUAL TRANS FEREE OF SHARES BUT THE COMPANY HAS GIVEN THE DETAILS OF 18000 SHARES T RANSFERRED TO SIX PAGE - 5 ITA.NO.1909/AHD/2003 -5- PERSONS AND THE COMPANY HAS ALSO CONFIRMED THAT THE APPELLANT WAS ALLOTTEE OF 18800 SHARES HAVING LF NO.248 THROUGH P UBLIC ISSUE OF EQUITY SHARES. IN VIEW OF THE ABOVE REPLY FROM THE COMPANY AND THE EXTRACT OF ANNUAL RETURN FILED BY THE COMPANY BEFOR E THE REGISTRAR OF COMPANIES, IT IS QUITE CLEAR THAT THE APPELLANT AHS TRANSFERRED SHARES OF BRILLIANT PORTFOLIOS LTD. AS REGARDS THE DENIAL OF SHARE BROKER SHRI J.K.JAIN THAT HE DID NOT KNOW THE APPELLANT, THE AP PELLANT HAS REPLIED THAT THE SAID SHARE BROKER WAS APPROACHED THROUGH S HRI VIMAL SINGHANIA OF DELHI WHO WAS ACTING AS REPRESENTATIVE OF SHRI J.K.JAIN AT DELHI AND AS THE SHARES OF BRILLIANT PORTFOLIOS LTD . WERE TRADE ONLY AT DELHI & JAIPUR STOCK EXCHANGE, THE APPELLANT HAD TO FIND OUT A SHARE BROKER OF THE SAID EXCHANGE AND THE APPELLANT CAME ACROSS SHRI VIMAL SINGHANIA WHO WAS THE REPRESENTATIVE OF SHRI JK JAI N, DELHI. THE LETTER DATED 10.4.2000 SENT BY JK JAIN CLEARLY SHOWS THAT ONE SHRI VIMAL SINGHANIA WAS HIS REPRESENTATIVE AT DELHI FOR TRADI NG OF SHARES AND HE DID NOT HAVE THE DETAILS WITH HIM AS THE DEAL WAS M ADE AT NEW DELHI. IT IS ALSO LIKELY AS THE APPELLANT HAS CONTENDED THAT THE SHARES WERE TRANSFERRED THROUGH A NUMBER OF PERSONS AND FINALLY THE SHARES WERE REGISTERED IN THE NAMES OF FINAL TRANSFEREES ON 16. 12.2000. THE FACT THAT MONEY HAS BEEN RECEIVED BY ACCOUNT PAYEE DRAFTS FRO M THE OFFICE OF JK JAIN IS NOT DISPUTED WHICH SHOWS THAT THE SHARES WE RE SOLD AND JK HAS ALSO CONFIRMED IT BY SAYING THAT THE DEMAND DRAFTS WERE SENT AND THE SHARES WERE SOLD BY THE APPELLANT. IN VIEW OF THE ABOVE FACTS, IT IS PROVED THAT THE SHARES WERE SOLD BY THE APPELLANT. THE REPORT OF DDIT(INV.) JAIPUR DOES NOT SAY ANYTHING SPECIFIC AB OUT ANY ACCOMMODATION ENTRY HAVING BEEN PASSED IN RESPECT O F THE TRANSACTIONS ENTERED INTO BY THE APPELLANT. THE FACT THAT SHRI JK JAIN HAS INDULGED IN ACCOMMODATION BUSINESS CANNOT BE APPLIED BLINDLY TO THE TRANSACTIONS OF THE APPELLANT AS NOTHING HAS BEEN BROUGHT ON REC ORD BY THE AO TO PROVE THAT SHRI JK JAIN HAS INDULGED IN ACCOMMODATI ON BUSINESS IN RESPECT OF SHARES OF BRILLIANT PORTFOLIO LTD., OR T HAT THE APPELLANT HAS PAID THE MONEY BACK TO THE SHARE BROKER. AS THE TR ANSACTION MADE BY THE APPELLANT IS SUPPORTED BY CONTRACT NOTE, DELIVE RY OF SHARE CERTIFICATES, PAYMENT OF DEMAND DRAFTS FROM THE BAN K ACCOUNT OF SHARE BROKER, THE GENUINENESS OF THE SAID TRANSACTION CAN NOT BE DOUBTED. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, I DIRECT THE AO TO ACCEPT THE CLAIM OF LONG TERM CAPITAL GAIN AND ALLOW DEDUCTION U/S.54F OF THE IT ACT. 8. AGAINST THE ORDER OF THE CIT(A), REVENUE IS BEFO RE US. THE LEARNED DR WHILE SUPPORTING THE ORDER OF THE AO SUBMITTED THAT THE IMPUGNED SALE OF THE SHARES IS NOT GENUINE CONSIDERING THE FACT THERE WA S NO CONVINCING EVIDENCE TO PAGE - 6 ITA.NO.1909/AHD/2003 -6- SHOW THAT THE SHARES WERE SOLD AND TRANSFERRED. TH IS STAND OF THE AO GETS SUPPORT FROM THE FACT THAT THE CONCERNED COMPANY HA D ANY INFORMATION ABOUT THE SALE OF SHARES AND THE RESULTANT TRANSFER OF TH E SHARES IN THE NAME OF THE TRANSFEREE AND ALL THAT THE COMPANY COULD PROVIDE W AS THAT IT HAS ALLOTTED THE SHARES EARLIER IN THE NAME OF THE ASSESSEE. EVEN T HE SO-CALLED BROKER HAS DENIED OF ANY DEALING WITH THE ASSESSEE AND EVEN HE DID NO T KNOW THE ASSESSEE. THEREFORE, LOOKING FROM ALL ANGLES, IT CANNOT BE SA ID THAT THE IMPUGNED TRANSACTION IS GENUINE BUT RATHER IT IS FAKE, FICTI TIOUS AND ARRANGED ONE. THEREFORE, THE ORDER OF THE CIT(A) IS NOT BASED ON JUDICIOUS CONSIDERATION OF THE FACTS AND ON MERIT, THEREFORE, THE SAME MAY BE SET ASIDE AND THE ORDER OF THE AO MAY BE RESTORED. 9. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE A SSESSEE CONTENDED THAT THE ORDER OF THE CIT(A) CANNOT BE FOUND TO BE INCOR RECT AS AVERRED BY THE LEARNED DR, AS THE BASIS OF THE FINDINGS AND CONSEQ UENT ADDITION BY THE AO IS MERELY ASSUMPTIONS AND SURMISES. IT IS NOT DISPUTE D THAT THE ASSESSEE WAS HAVING THE IMPUGNED SHARES ALLOTTED BY THE BRILLIAN T PORTFOLIO LTD. AND ALSO NOT DISPUTED THAT THE FACT THAT THE ASSESSEE RECEIVED T HE AMOUNT OF RS.14,92,650/- BY DEMAND DRAFT FROM THE BROKER HIMSELF AND ALL THE DETAILS THEREOF WERE FURNISHED BEFORE THE AO. BESIDES, THE ASSESSEE HAS FURNISHED ALL THE DETAILS COLLECTED FROM THE REGISTRAR OF COMPANIES REGARDING NAMES AND ADDRESSES OF THE SHARE HOLDERS ETC. REST OF THE CONTENTIONS OF THE REVENUE THAT THE BROKER HAS INDULGED IN ACCOMMODATION BUSINESS; THAT THE SHARE BROKER WAS NOT KNOWING THE ASSESSEE AND NOT AWARE OF THE SHARE TRANSFER DE AL WITH THE ASSESSEE WERE NOT BORNE OUT OF ANY MATERIAL EVIDENCES THEREFORE NO CO NSIDERATION CAN BE MADE TO THESE CONTENTIONS, WHICH HAVE NO BEARING ON THE DIS PUTE IN QUESTION. THE LEARNED CIT(A) IN THE IMPUGNED ORDER MADE DETAILED DISCUSSION ON VARIOUS ISSUES AND CAME INTO A JUST CONCLUSION THAT THE GEN UINENESS OF THE TRANSACTION CANNOT BE DOUBTED. THEREFORE, HIS ORDER ON THIS IS SUE MAY BE CONFIRMED AND THE APPEAL OF THE REVENUE MAY BE DISMISSED. PAGE - 7 ITA.NO.1909/AHD/2003 -7- 10. WE HAVE HEARD BOTH PARTIES AND CONSIDERED RIVAL SUBMISSIONS. WE HAVE ALSO GONE THROUGH THE MATERIAL AVAILABLE ON RECORD AND ALSO THE ORDERS OF BOTH THE REVENUE AUTHORITIES. WE ARE OF THE VIEW THAT T HE ORDER OF THE CIT(A) IN DIRECTING THE AO TO ACCEPT THE CLAIM OF THE ASSESSE E CANNOT BE FOUND TO BE INCORRECT AND UNJUSTIFIED AND IS BASED ON THE CONSI DERATION OF MATERIAL EVIDENCES PLACED ON RECORD. IT IS NOTED THAT THERE WAS NO CONTROVERSY AS TO THE SHARE HOLDING OF THE ASSESSEE IN BRILLIANT PORTFOLI OS LTD. TO THE EXTENT 18000 SHARES AND THAT THE PAYMENT AND RECEIPT OF DEMAND D RAFT CLAIMED TO BE SALE PROCEEDS OF SALE OF SHARES OF THE COMPANY. THE ASS ESSEE HAS FURNISHED VARIOUS SUPPORTING EVIDENCES LIKE DELIVERY OF SHARE CERTIFI CATE, CONTRACT NOTE ENTERED INTO WITH THE BROKER, PAYMENT OF SALES PROCEEDS BY DEMAND DRAFT THROUGH BANKER OF THE BROKER, THE DETAILS OF THE SHARE HOLD ERS COLLECTED FROM THE REGISTRAR OF COMPANIES ETC. ALL THESE WOULD NOT MAK E THE IMPUGNED TRANSACTION BY THE ASSESSEE NON-GENUINE AND DOUBTFU L NATURE SO AS TO DENY ITS CLAIM. THE AO WAS SIMPLY SWAYED BY THE REPLY OF TH E BROKER THAT THE ASSESSEE WAS NOT KNOWN TO HIM AND THAT THE BRILLIANT PORTFOL IO LTD. WAS NOT KNOWING THE INFORMATION ABOUT IMPUGNED SHARES TRANSACTION. THE RE WAS NO LOGICAL CONSIDERATION BY THE AO IN THIS REGARD. IN SHARE M ARKET, THE BROKER DEALS WITH NUMBER OF CUSTOMERS EVERYDAY AND IT IS NOT NECESSAR Y TO KNOW PERSONALLY EACH AND EVERY CUSTOMER COME ACROSS REGULARLY AND EVEN N OT POSSIBLE TO DO SO. LIKEWISE, AS POINTED OUT BY THE ASSESSEE, THE TRANS FEREE MAY GET THE SHARES TRANSFERRED TO HIS NAME IMMEDIATELY OR AFTER A PERI OD DEPENDING UPON HIS CHOICE AND HE MAY MEANWHILE DISPOSE OF THE SAID SHA RES AND THE ULTIMATE PURCHASER MAY LODGE THE SHARES BEING REGISTERED IN HIS NAME. MEANING THEREBY, BEFORE ULTIMATE LODGING OF THE SHARES FOR TRANSFER, THE SAME SHARE PASSES THROUGH A NUMBER OF TRANSACTIONS FROM ONE HAND TO A NOTHER, AND SELLER MAY NOT BE KNOWN WHO IS ULTIMATE PURCHASER AND IN WHOSE NAM E THE PARTICULAR SHARE IS TRANSFERRED. THEREFORE, SUBMISSIONS OF THE ASSESSE E AND THE FINDINGS OF THE CIT(A) IN THIS BEHALF CANNOT BE FOUND ERRONEOUS AND INCORRECT SO AS TO DENY ITS PAGE - 8 ITA.NO.1909/AHD/2003 -8- CLAIM. THEREFORE, LOOKING TO THE FACTS AND CIRCUMS TANCES IN ENTIRETY AND ALSO MATERIAL PLACED ON RECORD BY THE ASSESSEE AND INABI LITY OF THE REVENUE TO PROVE THAT SHARE TRANSACTION WAS NOT GENUINE SIMPLY BECAU SE THE SHARES WERE NOT TRANSFERRED IN THE NAME OF TRANSFEREE AND THAT THE ASSESSEE WAS NOT KNOWN TO THE BROKER, WE FIND NO INFIRMITY IN THE ORDER OF THE CI T(A) DIRECTING THE AO TO ALLOW THE CLAIM OF LONG TERM CAPITAL GAIN AND ALLOW DEDUCTION UNDER SECTION 54F OF THE INCOME-TAX ACT, WHICH IS UPHELD, THIS GR OUND OF THE REVENUE IS DISMISSED. 11. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN OPEN COURT ON 28 TH AUGUST, 2009. SD/- SD/- (N.S. SAINI) ACCOUNTANT MEMBER (T.K. SHARMA) JUDICIAL MEMBER PLACE : AHMEDABAD DATE : 28-08-2009 COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR, ITAT, AHMEDABAD