Mrs. Pushpalata Omprakash Bhandari, Pune V. Dy. CIT, Circle-2, Pune

ITA 2008/PUN/2012

• Counselvise Citation: 200824514 RSA 2012
• Duration Of Justice: 2 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-12-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 17-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K N BORA
• Keywords: Bogus purchase; Unexplained investment; Share purchase agreement; Period of limitation; Source of fund; Condonation of delay
• Section: 143(3); 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.2008/PN/2012 ASSESSMENT YEAR: 2005-06 MRS PUSHPALATA OMPRAKASH BHANDARI 373, SOMWAR PETH, BHANDARI APARTMENTS, PUNE 411002 . APPELLANT PAN: AHQPB6388K VS. THE DY. COMMISSIONER OF INCOME TAX CIRCLE -2, PUNE . RESPONDENT ITA NO.372/PN/2014 ASSESSMENT YEAR: 2005-06 MRS PUSHPALATA OMPRAKASH BHANDARI 373, SOMWAR PETH, BHANDARI APARTMENTS, PUNE 411002 . APPELLANT PAN: AHQPB6388K VS. THE DY. COMMISSIONER OF INCOME TAX CIRCLE -2, PUNE . RESPONDENT APPELLANT BY : S/SHRI SUNIL GANOO & K.N. BORA RESPONDENT BY : SHRI RAJESH DAMOR DATE OF HEARING : 23-12-2014 DATE OF PRONOUNCEMENT : 18-03-2015 ORDER PER SUSHMA CHOWLA, JM: BOTH THE APPEALS FILED BY THE ASSESSEE ARE AGAINST SEPARATE ORDERS OF CIT(A)-II, PUNE DATED 11.05.2012 AND 19.07.2010 REL ATING TO ASSESSMENT YEAR 2005-06 PASSED UNDER SECTION 143(3) R.W.S. 147 OF T HE INCOME-TAX ACT, 1961 AND PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE I NCOME-TAX ACT, 1961. ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 2 2. BOTH THE APPEALS RELATING TO THE SAME ASSESSEE W ERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDE R FOR THE SAKE OF CONVENIENCE. 3. THE ASSESSEE IN ITA NO.2008/PN/2012 HAS RAISED T HE FOLLOWING GROUNDS OF APPEAL:- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.[A] HAS ERRED IN CONFIRMING THE PENALTY LEVIE D BY THE LEARNED ASSESSING OFFICER U/S 271 [1] [C] OF THE I.T. ACT 1 961. THE SAID PENALTY LEVIED BEING ARBITRARY, PERVERSE AND BASED ON NO EV IDENCE AND BEING LEGALLY UNSUSTAINABLE THE SAME MAY PLEASE BE DELETE D. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, IT MAY PLEASE BE HELD THAT THE APPELLANT NEVER CONCEALED HER INCOME NOR FILED INACCURATE PARTICULARS OF HER INCOME AS ALLEGED BY THE LEARNED ASSESSING OFFICER AS WELL AS THE LEARNED C.I.T.[A] AND CONSEQUENTLY T HE IMPUGNED PENALTY BE DELETED. 3. THE APPELLANT CRAVES THE PERMISSION TO ADD, AMEND, MODIFY, ALTER, REVISE, SUBSTITUTE, DELETE ANY OR ALL GROUNDS OF APPEAL, IF DEEMED NECESSARY AT THE TIME OF HEARING OF THE APPEAL. 4. THE ASSESSEE IN ITA NO.372/PN/2014 HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL:- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED C.I.T.[A] HAS GROSSLY ERRED IN CONFIRMING THE DECIS ION OF THE LEARNED ASSESSING OFFICER THAT THE CLAIM OF THE APPELLANT A SSESSEE ABOUT LONG TERM CAPITAL GAINS OF RS.49,18,824.00 ON SALE OF SH ARES OF COMPANIES WAS A BOGUS AND FRAUDULENT CLAIM. THE SAID FINDING BEING ARBITRARY, PERVERSE, DEVOID OF MERITS AND BEING BAD IN LAW THE SAME MAY PLEASE BE VACATED AND IT MAY PLEASE BE HELD THAT THE IMPUG NED CLAIM OF THE APPELLANT ASSESSEE IS GENUINE AND THE CLAMS MADE BY THE APPELLANT ASSESSEE IN HER RETURN OF INCOME MAY PLEASE BE ACCE PTED. 2. THE APPELLANT CRAVES THE PERMISSION TO ADD, AMEND, MODIFY, ALTER, REVISE, SUBSTITUTE, DELETE ANY OR ALL GROUNDS OF APPEAL, IF DEEMED NECESSARY AT THE TIME OF HEARING OF THE APPEAL. 5. THE APPEAL IN ITA NO.372/PN/2014 WAS FILED AFTER A DELAY OF 1260 DAYS. THE ASSESSEE HAS MOVED AN APPLICATION FOR CONDONATI ON OF DELAY IN FILING THE APPEAL LATE BEFORE THE TRIBUNAL. THE PLEA OF THE A SSESSEE WAS THAT THE CIT(A) HAD DISMISSED THE APPEAL OF THE ASSESSEE ON 19.07.2 010. FURTHER, IT WAS SUBMITTED BY THE ASSESSEE THAT ALL HER TAX AND LEGA L MATTERS WERE LOOKED AFTER ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 3 BY HER HUSBAND LATE SHRI OMPRAKASH MISHRILAL BHANDA RI, WHO EXPIRED DUE TO SUDDEN CARDIAC ARREST ON 26.12.2012 AT GOA. IN THE CIRCUMSTANCES, THE ASSESSEE CLAIMS THAT SHE WAS NOT AWARE OF THE DATE ON WHICH THE ORDER WAS RECEIVED IN THE OFFICE. AFTER THE DEMISE OF HER HU SBAND, SHE CLAIMS TO BE IN TREMENDOUS MENTAL SHOCK AND IT TOOK HER MORE THAN T WO YEARS TO RECOVER OUT OF THE SAID SHOCK. ON OR ABOUT 30.10.2013, SHE REC EIVED A NOTICE FROM THE REGISTRY OF PUNE TRIBUNAL INTIMATING THE DATE OF HE ARING IN THE APPEAL FILED AGAINST THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT FOR ASSESSMENT YEAR 2005-06. IT WAS ONLY WHEN SHE APPROACHED THE TAX CONSULTANT IN RESPECT OF THE SAID APPEAL, HE ASKED WHETHER ANY APPEAL BEF ORE THE TRIBUNAL WAS FILED AGAINST THE DISMISSAL OF QUANTUM APPEAL. ON ENQUIR Y, IT CAME TO HER KNOWLEDGE THAT NO APPEAL WAS FILED AGAINST THE RE-A SSESSMENT ORDER BEFORE THE TRIBUNAL. AFTER COLLECTING THE COPIES OF DOCUM ENTS FROM THE ASSESSING OFFICER, THE APPEAL WAS FILED BEFORE THE TRIBUNAL A FTER A DELAY OF ABOUT 43 MONTHS. IN THE TOTALITY OF THE ABOVE SAID FACTS AN D CIRCUMSTANCES, SHE CLAIMS THAT THERE WAS NO MALAFIDE INTENTION IN NOT FILING THE APPEAL WITHIN THE STATUTORY TIME LIMIT AND THE DELAY IN FILING THE PRESENT APPE AL WAS DUE TO THE CIRCUMSTANCES BEYOND HER CONTROL. HENCE, SHE MADE A REQUEST TO CONDONE THE DELAY IN FILING THE PRESENT APPEAL AND THE APPE AL TO BE DECIDED ON MERITS. 6. THE ASSESSEE IN THIS REGARD, HAS FURNISHED AN AF FIDAVIT WHICH READS AS UNDER:- AFFIDAVIT I, MRS.PUSHPALATA OMPRAKASH BHANDARI, AGED ABOUT 61 YEARS, OCCUPATION HOUSEWIFE DO HEREBY DECLARE ON SOLEMN OA TH AND AFFIRMATION AS UNDER: 1. THAT FOR THE A.Y.2005-06, THE LEARNED DY.CIT CIR CLE 2 PUNE PASSED REASSESSMENT ORDER U/S 143(3) R.W.S. 147 OF THE I.T . ACT 1961 ON 22/12/2008 IN MY CASE DETERMINED THE NET TAXABLE IN COME AT RS.49,25,350.00 FOR THE REASONS AS FULLY MENTIONED IN THE SAID ORDER. 2. THAT THE SAID REASSESSMENT ORDER WAS CHALLENGED BY ME BEFORE THE LEARNED C.I.T.[A] II PUNE BY FILING AN APPEAL. ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 4 3. THAT THE LEARNED C.I.T.[A] VIDE HIS APPELLATE OR DER DT.19/07/2010 WAS PLEASED TO DISMISS MY APPEAL FOR THE REASONS AS FULLY MENTIONED IN THE IMPUGNED APPELLATE ORDER. 4. THAT ALL MY TAX AND LEGAL MATTERS WERE LOOKED AF TER BY MY HUSBAND LATE SHRI OMPRAKASH MISHRILAL BHANDARI WH O UNFORTUNATELY EXPIRED DUE TO SUDDEN CARDIAC ARREST ON 26/12/2012 AT GOA. IN THE CIRCUMSTANCES I DO NOT KNOW THE EXACT DATE ON W HICH THE IMPUGNED ORDER WAS RECEIVED IN OUR OFFICE. 5. AFTER THE SUDDEN DEMISE OF MY HUSBAND I HAD TREM ENDOUS MENTAL SHOCK AND IT TOOK ABOUT MORE THAN TWO YEARS FOR ME TO RECOVER FROM SHOCK. 6. ON OR ABOUT 30/10/2013 I RECEIVED THE NOTICE FRO M THE REGISTRY OF I.T.A.T. PUNE INTIMATING THE DATE OF HEARING IN ITA NO.2008/PUN/2012 AS 03/12/2013, IN RESPECT OF T HE APPEAL FILED BY ME AGAINST THE PENALTY LEVIED U/S 271[L][C] OF T HE I.T. ACT 1961 FOR THE A.Y.2005-06. 7. WHEN I APPROACHED TO MY TAX CONSULTANT IN RESPEC T OF THE AFORESAID APPEAL, HE ASKED ME WHETHER ANY APPEAL AGAINST THE APPELLATE ORDER PASSED BY THE LEARNED C.I.T.[A] DISMISSING MY APPEAL AGAINST THE REASSESSMENT ORDER WAS FILED BEFORE THE HON. I.T.A.T. AS EXPLAINED EARLIER SINCE ALL MY TAX AND LEGAL MATTER S WERE LOOKED AFTER BY MY LATE HUSBAND, I WAS UNAWARE ABOUT THE S AID FACT. UNFORTUNATELY AFTER THE DEMISE OF MY HUSBAND, SOME KEY PERSONS FROM OUR ACCOUNTS DEPARTMENT HAD ALSO LEFT THE JOB. 8. THE RELEVANT PAPERS WERE ALSO NOT AVAILABLE IN O UR OFFICE. UPON ENQUIRIES WITH THE OFFICE OF THE REGISTRY ITAT IT W AS OBSERVED THAT NO APPEAL AGAINST THE REASSESSMENT ORDER WAS FILED BEFORE THE HON. I.T.A.T. PUNE BENCHES PUNE. I AM NOT AWARE ABOUT TH E REASONS AS TO WHY MY LATE HUSBAND DID NOT PREFER ANY APPEAL BE FORE THE HON. I.T.A.T. PUNE AGAINST THE APPELLATE ORDER PASSED BY THE LEARNED C.I.T.[A] 9. WITH UTMOST DIFFICULTY, I HAVE COLLECTED THE COP IES OF DOCUMENTS FROM THE LEARNED ASSESSING OFFICER. I AM NOW FILIN G THE APPEAL BEFORE THE HON. I.T.A.T. PUNE BENCHES PUNE CHALLENG ING THEREIN THE APPELLATE ORDER PASSED BY THE LEARNED C.I.T.[A] FOR THE A.Y.2005-06, WHEREBY HE HAS DISMISSED MY APPEAL FILED BEFORE HIM AGAINST THE REASSESSMENT ORDER FOR A.Y.2005-06 FRAMED BY THE LEARNED ASSESSING OFFICER. IN THE CIRCUMSTANCES THERE IS TH US DELAY OF ABOUT 43 MONTHS IN FILING THE PRESENT APPEAL. 10. I HAVE A GOOD CASE AND IN VARIOUS SIMILAR CASES THE HON. I.T.A.T. PUNE BENCHES HAVE QUASHED THE REASSESSMENT ORDERS. 11. I AM A WIDOW AND MY HUSBAND DIED DUE TO SUDDEN CARDIAC ARREST. DUE TO HIS UNTIMELY DEATH, MY LIFE IS TOTALLY SHATT ERED. I HAD NO MALAFIDE INTENTIONS IN NOT FILING THE APPEAL WITHIN THE STATUTORY TIME LIMIT. THE DELAY CAUSED IN FILING THE APPEAL IS DUE TO CIRCUMSTANCES BEYOND MY CONTROL. ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 5 12. THIS AFFIDAVIT IS EXECUTED FOR FILING THE SAME BEFORE THE HON. I.T.A.T. PUNE BENCHES PUNE, IN THE MATTER OF CONDONATION OF DELAY IN FILING THE APPEAL. 13. THE CONTENTS OF THIS AFFIDAVIT ARE TRUE AND COR RECT TO THE BEST OF MY KNOWLEDGE AND BELIEF. 14. THIS AFFIDAVIT IS EXECUTED AT PUNE ON THIS 28 TH DAY OF JUNE 2014. [MRS. PUSHPALATA OMPRAKASH BHANDARI] AFFIANT 7. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE AS SESSEE TOOK US THROUGH THE SUBMISSIONS MADE IN THE AFFIDAVIT AND P OINTED OUT THAT THERE WAS NO MALAFIDE INTENTION IN NOT FILING THE APPEAL IN T IME. RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS VIS--VIS CONDONATION OF DE LAY IN FURNISHING APPEAL LATE:- I) N. BALAKRISHNAN VS. M. KRISHNAMURTHY 1998 (9) TM I 602 SC II) IMPROVEMENT TRUST, LUDHIANA VS. UJAGAR SINGH & ORS., IN CIVIL APPEAL NO.2395 OF 2008, ORDER DATED 09.06.2010 III) SHIVSHANTI CONSTRUCTIONS PVT. LTD., VS. DY.CIT IN ITA NO.1049/PN/2011, VIDE ORDER DATED 31.12.2012 IV) COLLECTOR, LAND ACQUISITION VRS. MST. KATIJI AN D OTHERS. 167 ITR 471 (SC) 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, POINTED OUT THAT THE APPEAL WAS DISMISSED BY THE CIT(A) ON 19.07.2010 AND HER HUSBAND TOOK A CONSCIOUS DECISION IN NOT FI LING ANY APPEAL AGAINST THE SAID DISMISSAL OF APPEAL. IT WAS FURTHER POINTED O UT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE THAT TH E ORDER LEVYING PENALTY UNDER SECTION 271(1)(C) OF THE ACT WAS PASSED ON 28 .02.2011, AGAINST WHICH THE APPEAL WAS DECIDED BY THE CIT(A) ON 11.06.2011 AND THERE WAS TOTAL COMPLIANCE BEFORE THE CIT(A). THE DATE OF DEATH WA S 26.12.2012 AND HENCE WHERE THE ASSESSEE HAS FAILED TO FURNISH THE REASON S FOR THE DELAY IN FURNISHING THE APPEAL, THERE WAS NO MERIT IN THE CONDONATION A PPLICATION MOVED BY THE ASSESSEE. RELIANCE IN THIS REGARD WAS PLACED ON TH E RATIO LAID DOWN BY THE ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 6 HONBLE MADRAS HIGH COURT IN M. LOGANATHAN V. GOVER NMENT OF INDIA REPRESENTED BY COMMISSIONER OF INCOME-TAX [2008] 30 2 ITR 139 (MAD). 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE FIRST ASPECT OF THE APPEAL BEFORE US IS IN RELATION TO TH E CONDONATION OF DELAY IN FILING THE APPEAL LATE BY ABOUT 43 MONTHS. THE ASSESSEE H AS FILED AN AFFIDAVIT ALONG WITH AN APPLICATION FOR CONDONATION OF DELAY IN FIL ING THE APPEAL LATE BEFORE THE TRIBUNAL. THE PERUSAL OF REASONS IN THE SAID AFFID AVIT REFLECTS THE DELAY IN FURNISHING THE APPEAL WERE FOR REASONS WHICH WERE B EYOND THE CONTROL OF THE ASSESSEE. THE HONBLE SUPREME COURT IN COLLECTOR, LAND ACQUISITION VRS. MST. KATIJI AND OTHERS (SUPRA) HELD AS UNDER:- 'WHEN TECHNICAL CONSIDERATION AND SUBSTANTIAL JUSTI CE ARE PITTED AGAINST EACH OTHER, THE COURTS ARE EXPECTED TO FURTHER THE CAUSE OF SUBSTANTIAL JUSTICE. THIS IS FOR THE REASON THAT AN OPPOSING PA RTY IN A DISPUTE CANNOT HAVE A VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. THEREFORE, IT FOLLOWS THAT WHILE CONSIDERING MATTERS RELATING TO THE CONDONATION OF DELAYS A JUDICIOUS AND LIBERAL APPRO ACH IS TO BE ADOPTED. IF SUFFICIENT CAUSE IS FOUND TO EXIST WHICH IS BONA FIDE AND NOT DUE TO NEGLIGENCE OF THE APPLICANT, THE DELAY NEEDS TO BE CONDONED IN SUCH WHICH SUBSERVES THE END OF JUSTICE - THAT BEING THE LIFE PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS.' 10. FURTHER, THE HONBLE SUPREME COURT IN N. BALAKR ISHNAN VS. M. KRISHNAMURTHY (SUPRA) ALSO WHILE ADJUDICATING THE I SSUE OF DELAY OBSERVED AS UNDER:- 13. IT MUST BE REMEMBERED THAT IN EVERY CASE OF DE LAY, THERE CAN BE SOME LAPSE ON THE PART OF THE LITIGANT CONCERNED. T HAT ALONE IS NOT ENOUGH TO TURN DOWN HIS PLEA AND TO SHUT THE DOOR A GAINST HIM. IF THE EXPLANATION DOES NOT SMACK OF MALA FIDES OR IT IS N OT PUT FORTH AS PART OF A DILATORY STRATEGY, THE COURT MUST SHOW UTMOST CON SIDERATION TO THE SUITOR. BUT WHEN THERE IS REASONABLE GROUND TO THIN K THAT THE DELAY WAS OCCASIONED BY THE PARTY DELIBERATELY TO GAIN TIME, THEN THE COURT SHOULD LEAN AGAINST ACCEPTANCE OF THE EXPLANATION. WHILE C ONDONING THE DELAY, THE COURT SHOULD NOT FORGET THE OPPOSITE PARTY ALTO GETHER. IT MUST BE BORNE IN MIND THAT HE IS A LOSER AND HE TOO WOULD H AVE INCURRED QUITE LARGE LITIGATION EXPENSES. IT WOULD BE A SALUTARY G UIDELINE THAT WHEN COURTS CONDONE THE DELAY DUE TO LACHES ON THE PART OF THE APPLICANT, THE COURT SHALL COMPENSATE THE OPPOSITE PARTY FOR HIS L OSS. 11. THE HONBLE SUPREME COURT IN IMPROVEMENT TRUST, LUDHIANA VS. UJAGAR SINGH & ORS. (SUPRA) HELD AS UNDER:- ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 7 2. AFTER ALL, JUSTICE CAN BE DONE ONLY WHEN THE MA TTER IS FOUGHT ON MERITS AND IN ACCORDANCE WITH LAW RATHER THAN TO DI SPOSE IT OF ON SUCH TECHNICALITIES AND THAT TOO AT THE THRESHOLD. BOTH SIDES HAD TRIED TO ARGUE THE MATTER ON MERITS BUT WE REFRAIN OURSELVES FROM TOUCHING THE MERITS OF THE MATTER AS THAT CAN BEST BE DONE BY THE EXECU TING COURT WHICH HAD DENIED AN OPPORTUNITY TO THE APPELLANT TO LEAD EVIDENCE AND TO PROVE THE ISSUES SO FORMULATED. 3. IN OUR OPINION, ENDS OF JUSTICE WOULD BE MET BY SETTING ASIDE THE IMPUGNED ORDERS AND MATTER IS REMITTED TO THE EXECU TING COURT TO CONSIDER AND DISPOSE OF APPELLANT'S OBJECTIONS FILE D UNDER ORDER 21 RULE 90 OF CPC ON MERITS AND IN ACCORDANCE WITH LAW , AT AN EARLY DATE. IT IS PERTINENT TO POINT OUT THAT UNLESS MALAFIDES ARE WRIT LARGE ON THE CONDUCT OF THE PARTY, GENERALLY AS A NORMAL RULE, D ELAY SHOULD BE CONDONED. IN THE LEGAL ARENA, AN ATTEMPT SHOULD ALW AYS BE MADE TO ALLOW THE MATTER TO BE CONTESTED ON MERITS RATHER T HAN TO THROW IT ON SUCH TECHNICALITIES. APART FROM THE ABOVE, APPELLA NT WOULD NOT HAVE GAINED IN ANY MANNER WHATSOEVER, BY NOT FILING THE APPEAL WITHIN THE PERIOD OF LIMITATION. IT IS ALSO WORTH NOTICING THA T DELAY WAS ALSO NOT THAT HUGE, WHICH COULD NOT HAVE BEEN CONDONED, WITHOUT P UTTING THE RESPONDENTS TO HARM OR PREJUDICE. IT IS THE DUTY OF THE COURT TO SEE TO IT THAT JUSTICE SHOULD BE DONE BETWEEN THE PARTIES. 12. IN THE CASE BEFORE US, THERE IS NO MATERIAL ON RECORD TO DOUBT THE BONAFIDES OF THE ASSESSEE AND THERE IS NO REASON TO DOUBT THE BONAFIDES OF REASON FOR DELAY. IN THE TOTALITY OF THE ABOVE SAI D FACTS AND CIRCUMSTANCES, THE DELAY IN FILING THE PRESENT APPEAL BELATEDLY DESERV ED TO BE CONDONED. ACCORDINGLY, WE CONDONE THE DELAY IN FILING THE APP EAL BEFORE THE TRIBUNAL AND PROCEED TO DECIDE THE APPEAL ON MERITS AFTER HEARIN G BOTH THE PARTIES. 13. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HONBLE MADR AS HIGH COURT IN M. LOGANATHAN V. GOVERNMENT OF INDIA REPRESENTED BY CO MMISSIONER OF INCOME- TAX (SUPRA), BUT BECAUSE OF THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE DECISIONS REFERRED TO BY US IN THE PARAS HER EINABOVE, WE FIND NO MERIT IN THE RELIANCE PLACED UPON BY THE LEARNED DEPARTMENTA L REPRESENTATIVE FOR THE REVENUE. 14. THE ISSUE ON MERITS RAISED IS AGAINST COMPUTATI ON OF INCOME FROM CAPITAL GAINS ON SALE OF SHARES OF COMPANIES, WHICH WERE HELD TO BE BOGUS AND FRAUDULENT, BY THE AUTHORITIES BELOW. ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 8 15. THE BRIEF FACTS OF THE CASE ARE THAT, THE ASSES SEE HAD DECLARED INCOME FROM LONG TERM CAPITAL GAINS ON SALE OF SHARES OF M /S. FAST TRACK ENTERTAINMENT LTD. THE ASSESSING OFFICER HOWEVER, RECEIVED INFORMATION FROM THE ADIT (INVESTIGATION) UNIT-1(1), PUNE REGARDING IRREGULARITIES IN THE PURCHASE AND SALE OF SHARE TRANSACTIONS OF M/S. FAS T TRACK ENTERTAINMENT LTD. AND ANOTHER COMPANY AND PURSUANT TO THE SAID INFORM ATION, THE REASONS WERE RECORDED FOR ISSUE OF NOTICE UNDER SECTION 148 OF T HE ACT WHICH ARE REPRODUCED AT PAGES 2 AND 3 OF THE ASSESSMENT ORDER. THE ASSE SSING OFFICER FURTHER NOTED THAT THE ASSESSEE DURING THE YEAR UNDER CONSI DERATION HAD SOLD SHARES OF THE SAID COMPANY AT RS.49,18,824/- AND HAD CLAIM ED LONG TERM CAPITAL GAINS OF RS.49,15,723/-. DURING THE COURSE OF SEARCH OPE RATIONS CARRIED OUT BY THE INVESTIGATION WING, PUNE IN THE OFFICES AND RESIDEN TIAL PREMISES OF SEVERAL STOCK BROKERS AND MANAGERS OF FINANCE COMPANIES, IT WAS FOUND THAT THERE WERE LARGE SCALE MANIPULATIONS IN PURCHASES AND SAL E OF SOME OF THE SHARES. THE SHARES OF THE ALLEGED COMPANIES WERE SHOWN TO H AVE BEEN PURCHASED AT THE PREVAILING MARKET RATE OF RS.1/- TO 2/- PER SHA RE TO FACILITATE THE CONCERNED SHARE PURCHASER TO CLAIM SHARES HOLDING FOR MORE TH AN 12 MONTHS, WHEREAS IN ACTUAL PRACTICE, THERE IS NO REAL PURCHASE OR SALE OF SHARES AT ALL. SOME OF THE BROKERS IN THE STATEMENTS RECORDED BEFORE THE AUTHO RITIES BELOW HAD ADMITTED THAT THEY HAD ISSUED BACK DATED BOGUS PURCHASE BILL S IN RESPECT OF SHARES OF THESE COMPANIES IN ORDER TO SHOW THE HOLDING PERIOD TO BE MORE THAN 12 MONTHS. THE MAIN PURPOSE BEHIND THE SAME WAS TO IN TRODUCE UNACCOUNTED FUNDS INTO THE BOOKS OF ACCOUNT UNDER THE GUISE OF LONG TERM CAPITAL GAINS. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD S HOWN COST OF PURCHASE OF 1,00,000 SHARES AT RS.2,12,750/- WHICH WERE PURCHAS ED FROM THE BROKER SUNIL SHARES AND STOCK P. LTD. THE SAID SHARES PURCHASED IN PHYSICAL FORM AND COPIES OF CONTRACT NOTES OF PURCHASE OF THESE SHARE S IN THE MONTH OF JUNE, 2003 WERE FURNISHED BEFORE THE ASSESSING OFFICER. HOWEVER, FROM THE LEDGER ACCOUNT EXTRACT OF BROKERS SUBMITTED BY THE ASSESSE E, IT WAS SEEN THAT THOUGH ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 9 THE PURCHASES WERE MADE IN THE MONTH OF JUNE, 2003, THE PAYMENT TO THE BROKER WAS MADE ON 15.07.2004. FURTHER, THE SHARES WERE DE-MATERIALIZED ON 26.07.2004. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE CLAIM OF THE ASSESSEE REGARDING PURCHASE OF SHARES IN THE MONTH OF JUNE, 2003 WAS NOT CORRECT. THE ASSESSEE HAD SOLD 70,000 SHARES IN TH E MONTH OF AUGUST, 2004 FOR RS.49,18,824/- AND AFTER CLAIMING DEDUCTION OF RS.3,101/- HAD SHOWN SALE OF RS.49,15,723/-. DURING THE COURSE OF INVESTIGAT ION BY THE INVESTIGATION WING, PUNE, INFORMATION WAS COLLECTED FROM THE BOMB AY STOCK EXCHANGE, WHICH REPORTED THAT THE COMPANY M/S. FAST TRACK ENT ERTAINMENT LTD. HAD EARNED VERY LOW INCOME OF RS.2.1 LAKHS AND MARGINAL NET PROFIT OF RS.1.1 LAKHS DURING THE FINANCIAL YEAR ENDING 31.03.2004. HOWEV ER, THE PRICE OF SCRIP INCREASED FROM RS.13.16 TO RS.33.30 AND THEN TO RS. 60/-. FURTHER, INFORMATION WAS COLLECTED IN RESPECT OF MARKET TRANSACTIONS CON DUCTED BY THE SAID COMPANY WHICH IS REPRODUCED BY THE ASSESSING OFFICE R AT PAGES 5 AND 6 OF THE ASSESSMENT ORDER. ON ANALYSIS, THERE WAS A PROPOSA L TO INITIATE ACTION AGAINST CERTAIN COMPANIES AND THE NAME OF THE COMPANIES FRO M WHOM THE ASSESSEE HAD PURCHASED THE SAID SHARES WAS MISSING. AS PER INFORMATION, IT WAS NOTED THAT THE CONTRACT NOTES, BILLS ISSUED BY THE BROKER S WERE FOUND TO BE BOGUS ON VERIFICATION FROM THE STOCK EXCHANGE AND FURTHER, T HE BROKERS WHO HAD ISSUED CONTRACT NOTES AND BILLS WERE FOUND TO BE INVOLVED IN PRICE MANIPULATIONS OF RESPECTIVE SCRIPS. IN VIEW OF THE ABOVE SAID EXERC ISE AND THE VERIFICATION FROM THE BSE, THE FINAL CONCLUSION WAS DRAWN THAT THE PU RCHASE OF SHARES OF M/S. FAST TRACK ENTERTAINMENT LTD. HAD NOT TAKEN PLACE O N THE SAID DATE. FURTHER, INVESTIGATION BY VARIOUS REGULATING AUTHORITIES INT O THE PRICE MANIPULATIONS OF SCRIPS OF VARIOUS COMPANIES ALSO PROVES THE SAID FA CT THE COMPANIES OF WHICH SHARES WERE CLAIMED TO HAVE TRANSACTED BY THE ASSES SEE, ALSO ENJOYED DUBIOUS REPUTATION AND WERE UNDER INVESTIGATION BY SEVERAL REGULATORY AUTHORITIES. IN VIEW THEREOF, THE ASSESSEES CLAIM OF SALES OF SHARES OF M/S. FAST TRACK ENTERTAINMENT LTD., WERE HELD SHAM ARRAN GEMENT TO DECLARE LONG ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 10 TERM CAPITAL GAIN AND AMOUNT RECEIVED ON SALE OF SH ARES, WAS ADDED AS INCOME FROM OTHER SOURCES. 16. THE CIT(A) UPHELD THE ORDER OF ASSESSING OFFICE R IN VIEW OF THE FACT THAT THE TRANSACTIONS FROM WHICH LONG TERM CAPITAL GAIN WAS CLAIMED TO HAVE ARISEN DID NOT ACCORD WITH HUMAN PROBABILITIES AND HENCE, THE INCOME DECLARED UNDER THE HEAD CAPITAL GAIN WAS HELD TO BE NON-GENUINE AN D THE ENTIRE SALE PROCEEDS WERE TO BE ASSESSED AS UNDISCLOSED INCOME. 17. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A) AND IT WAS POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIV E FOR THE ASSESSEE THAT THE SHARES WERE ADMITTEDLY PURCHASED IN THE MONTH O F JUNE, 2003, AGAINST WHICH NO PAYMENT WAS MADE BY THE ASSESSEE SINCE THE BROKER OWED MONEY TO THE ASSESSEE. OUR ATTENTION WAS DRAWN TO THE DO CUMENTS PLACED AT PAGES 12 AND 3 OF PAPER BOOK. IT WAS FURTHER POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE THAT THE SHARES PUR CHASED BY THE ASSESSEE WERE CONVERTED INTO JUMBO CERTIFICATES WHICH IN TUR N WERE D-MATED AND OUR ATTENTION WAS DRAWN TO THE D-MAT STATEMENT PLACED A T PAGE 31 OF THE PAPER BOOK. THE LEARNED AUTHORIZED REPRESENTATIVE FOR TH E ASSESSEE POINTED OUT THAT THE ADDITION WAS MADE IN THE HANDS OF THE ASSE SSEE ONLY ON SURMISES AND NO QUESTION IN THIS REGARD WAS PUT EITHER TO THE BR OKER OR THE ASSESSEE. RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY THE P UNE BENCH OF THE TRIBUNAL IN SUSHILA SURESH CHAVAN VS. ITO IN ITA NO.1436/PN/ 2011, ORDER DATED 15.01.2014. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ALSO PLACED ON RECORD THE STATEMENT ISSUED BY THE COSMOS CO-OPERATIVE BANK LTD. 18. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE D-MAT OF SAID SHARES WAS CARRIED OUT ON RE CEIPT OF JUMBO CERTIFICATES. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REV ENUE REFERRED TO THE ORDER OF CIT(A), IN WHICH IT HAS BEEN POINTED OUT T HAT ON RECEIPT OF INFORMATION, ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 11 OTHER PARTIES HAD REVISED ITS RETURNS OF INCOME AND OFFERED THE INCOME TO TAX. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REV ENUE FURTHER POINTED OUT THAT IN VIEW OF THE SURROUNDING CIRCUMSTANCES, THE TRANSACTIONS CONDUCTED BY THE ASSESSEE WAS A SHAM TRANSACTION AND THERE WAS N O MERIT IN THE PLEA OF THE ASSESSEE. RELIANCE WAS PLACED ON THE RATIO LAID DO WN BY THE MUMBAI BENCH OF THE TRIBUNAL IN SHRI ARVIND M KARIYA VS. ACIT, I TA NO.7024/MUM/2010, VIDE ORDER DATED 30.01.2013. 19. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION HAD TR ANSACTED INTO PURCHASE AND SALE OF SHARES. ONE TRANSACTION WHICH HAS BEEN TAKEN NOTE OF BY THE AUTHORITIES BELOW WAS THE SALE OF SHARES OF M/S. FA ST TRACK ENTERTAINMENT LTD. THE ASSESSEE CLAIMS TO HAVE SOLD 1,00,000 SHARES OF THE SAID CONCERN DURING THE YEAR UNDER CONSIDERATION, WHICH IN TURN WERE PU RCHASED BY THE ASSESSEE IN JUNE, 2003. THE ASSESSEE HAS PLACED ON RECORD THE CONTRACT NOTES FOR THE PURCHASE OF SHARES IN DIFFERENT LOTS FROM THE SHARE BROKER SUNIL SHARES & STOCK P. LTD. ALONG WITH COPY OF ACCOUNT OF ASSESSEE IN T HE BOOKS OF SUNIL SHARES & STOCK P. LTD. THE ASSESSEE DURING THE SAID FINANCI AL YEAR I.E. 2003-04 WAS ALSO PURCHASING AND SELLING SHARES AND AGAINST THE SALE PROCEEDS OF VARIOUS SHARES SOLD BY THE ASSESSEE IN THAT PERIOD, THE PUR CHASE PRICE OF SHARES OF M/S. FAST TRACK ENTERTAINMENT LTD. WAS ADJUSTED BY THE BROKER. ADMITTEDLY, THE ASSESSEE DID NOT PAY CONSIDERATION EITHER BY CH EQUE OR CASH BUT SAME WAS ADJUSTED AGAINST THE AMOUNT DUE FROM THE SAID B ROKER IN THE RUNNING ACCOUNT OF THE ASSESSEE WITH THE SAID BROKER. THE CONTRACT NOTES FOR THE PURCHASE OF THE SAID SHARES ARE ALSO PLACED ON RECO RD BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE. FURTHE R, ON 04.07.2003, THE COMPANY HAD CONFIRMED THE RECEIPT OF TRANSFER DEEDS ALONG WITH SHARE CERTIFICATES TO TRANSFER THE SAID SHARES IN THE NAM E OF THE ASSESSEE. THE ASSESSEE HAD SENT THREE CERTIFICATES I.E. THE FIRST CERTIFICATE OF 28,600 SHARES ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 12 BEARING DISTINCTIVE NUMBERS 1167401 TO 1196000, 405 00 SHARES WITH DISTINCTIVE NUMBERS 1717201 TO 1757700 AND 30,900 S HARES WITH DISTINCTIVE NUMBERS 4396001 TO 4426900, TOTALING 1,00,000 SHARE S TO THE COMPANY ALONG WITH TRANSFER DEEDS FOR TRANSFERRING THE SAID SHARE S IN THE NAME OF ASSESSEE. COPY OF THE SAID LETTER DATED 04.07.2003 IS PLACED AT PAGE 25 OF THE PAPER BOOK. IN EXCHANGE OF THE SHARES HELD BY THE ASSESS EE, JUMBO SHARES WERE ISSUED BY THE SAID COMPANY ON 16.02.2004 AND THE CO PY OF THE COMMUNICATION IS PLACED AT PAGE 26 OF THE PAPER BOO K. THE COPIES OF THE JUMBO CERTIFICATES ARE PLACED AT PAGES 27 TO 29 OF THE PAPER BOOK. THE COPY OF D-MAT ACCOUNT DATED 31.07.2004 EVIDENCING THE D- MATTING OF 1,00,000 SHARES ON 26.07.2004 IS PLACED AT PAGE 30 OF THE PA PER BOOK. THE SAID SHARES WERE SOLD BY THE ASSESSEE IN THE MONTH OF AU GUST, 2004 IN DIFFERENT LOTS AND THE CONTRACT NOTES OF THE BROKER ARE PLACE D AT PAGES 32 TO 37 OF THE PAPER BOOK. THE TOTAL SALE CONSIDERATION RECEIVED BY THE ASSESSEE WAS RS.42,14,824/- FROM THE SHARE BROKER PILOT CREDIT C APITAL LTD. AND FURTHER SUM OF RS.7,03,614/- FROM THE SHARE BROKER SSKI INVESTO R SERVICES PVT. LTD., AS PER CONTRACT NOTES PLACED AT PAGES 32 TO 37 OF PAPER BO OK AND THE COPY OF ACCOUNTS PLACED AT PAGE 38 OF THE PAPER BOOK. 20. THE QUESTION WHICH ARISES BEFORE US IS THE TREA TMENT OF GAIN ARISING ON THE SAID TRANSACTION OF SALE, PURCHASE OF SHARES IS TO BE ASSESSED UNDER THE HEAD INCOME FROM LONG TERM CAPITAL GAINS AS CLAIMED BY THE ASSESSEE OR UNDER THE HEAD INCOME FROM OTHER SOURCES AS DETERMI NED BY THE AUTHORITIES BELOW. THE FIRST ASPECT TO BE CONSIDERED IN THE CA SE OF ASSESSEE IS THAT THOUGH ENQUIRIES WERE MADE IN RESPECT OF SEVERAL CO MPANIES AND BROKERS, BUT THE NAME OF BROKER THROUGH WHOM THE ASSESSEE HAD TR ANSACTED IN THE SHARES OF M/S. FAST TRACK ENTERTAINMENT LTD. DOES NOT APPE AR IN THAT SAID LIST. FURTHER, THE ASSESSEE HAS PRODUCED COMPLETE EVIDENC E VIS--VIS THE PURCHASE OF SHARES AND THE DELIVERY OF SHARES CERTIFICATES T O THE ASSESSEE AND ITS ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 13 CONSEQUENT CONVERSION INTO JUMBO CERTIFICATES AND F URTHER SALE TRANSACTION THROUGH DIFFERENT BROKERS. IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WHERE THE ASSESSEE HAS PLACED ON REC ORD THE COMPLETE EVIDENCE OF PURCHASE AND SALE OF SHARES, MERELY BEC AUSE THE SHARES WERE D- MATTED IN JULY, 2004 AND THEREAFTER, WERE SOLD IN T HE MONTH OF AUGUST, 2004, DOES NOT ESTABLISH THE CASE OF AUTHORITIES BELOW, I N VIEW OF THE CIRCUMSTANTIAL EVIDENCE PRODUCED BY THE ASSESSEE. IN THE TOTALITY OF SAID EVIDENCES, WE HOLD THAT ONCE THE ASSESSEE HAD TAKEN THE DELIVERY OF SH ARES BY WAY OF SHARE CERTIFICATES, WHICH IN TURN, WERE FORWARDED TO THE COMPANY ALONG WITH TRANSFER DEEDS ON 04.07.2003 ITSELF ESTABLISHES THE CASE OF THE ASSESSEE OF HAVING PURCHASED THE SAID SHARES DURING THAT PERIOD. FURT HER, THE SAID SHARES WERE CONVERTED INTO JUMBO CERTIFICATES VIDE COMMUNICATIO N DATED 16.02.2004 AND THEREAFTER, THERE WAS DE-MATERIALIZATION OF THE SHA RES ON 26.07.2004. IN THE ENTIRETY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WE HOLD THAT THE GAIN ARISING ON TRANSFER OF SHARES IS TO BE ASSESSED AS INCOME FROM LONG TERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. 21. WE FURTHER FIND SUPPORT FROM THE RATIO LAID DOW N BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. SHRI MUKESH RATILAL MAROLIA I N INCOME TAX APPEAL NO.456 OF 2007, VIDE ORDER DATED 07.09.2011, WHEREI N IT WAS HELD AS UNDER:- 5. ON FURTHER APPEAL, THE ITAT BY THE IMPUGNED ORD ER ALLOWED THE CLAIM OF THE ASSESSEE BY RECORDING THAT THE PURCHAS E OF SHARES DURING THE YEAR 1999-2000 AND 2000-2001 WERE DULY RECORDED IN THE BOOKS MAINTAINED BY THE ASSESSEE. THE ITAT HAS RECORDED A FINDING THAT THE SOURCE OF FUNDS FOR ACQUISITION OF THE SHARES WAS T HE AGRICULTURAL INCOME WHICH WAS DULY OFFERED AND ASSESSED TO TAX IN THOSE ASSESSMENT YEARS. THE ASSESSEE HAS PRODUCED CERTIFICATES FROM THE AFORESAID FOUR COMPANIES TO THE EFFECT THAT THE SHARES WERE IN-FAC T TRANSFERRED TO THE NAME OF THE ASSESSES. IN THESE CIRCUMSTANCES, THE DECISION OF THE ITAT IN HOLDING THAT THE ASSESSEE HAD PURCHASED SHA RES OUT OF THE FUNDS DULY DISCLOSED BY THE ASSESSEE CANNOT LIE FAU LTED. 6 SIMILARLY, THE SALE OF THE SAID SHARES FOR RS.1,4 1,08,484/- THROUGH TWO BROKERS NAMELY, M/S RICHMOND SECURITIES PVT . LTD. AND M/S.SCORPIO MANAGEMENT CONSULTANTS PVT. LTD. CANNOT BE DISPUTED, BECAUSE THE FACT THAT THE ASSESSEE HAS RECEIVED THE SAID AMOUNT IS NOT IN DISPUTE. IT IS NEITHER THE CASE OF THE REVENUE T HAT THE SHARES IN ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 14 QUESTION ARE STILL LYING WITH THE ASSESSEE NOR IT I S THE CASE OF THE REVENUE THAT THE AMOUNTS RECEIVED BY THE ASSESSEE O N SALE OF THE SHARES IS MORE THAN WHAT IS DECLARED BY THE ASSESSE E. THOUGH THERE IS SOME DISCREPANCY IN THE STATEMENT OF THE DIRECTOR O F M/S. RICHMAND SECURITIES PVT. LTD. REGARDING THE SALE TRANSACTION , THE TRIBUNAL RELYING ON THE STATEMENT OF THE EMPLOYEE OF M/S. RICHMAND S ECURITIES PVT. LTD. HELD THAT THE SALE TRANSACTION WAS GENUINE. 7 IN THESE CIRCUMSTANCES, THE DECISION OF THE ITAT IN HOLDING THAT THE PURCHASE AND SALE OF SHARES ARE GENUINE AND THE REFORE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN HOLDING THAT THE AMOUNT OF RS.1,41,08,484/- REPRESENTED UNEXPLAINED INVESTMENT UNDER SECTION 69 OF THE INCOME TAX ACT, 1961 CANNOT BE FAULTED. 8. IN THE RESULT, WE SEE NO MERIT IN THIS APPEAL AN D THE SAME IS DISMISSED WITH NO ORDER AS TO COSTS. 22. FURTHER, PUNE BENCH OF THE TRIBUNAL IN SUSHILA SURESH CHAVAN VS. ITO IN ITA NO.1436/PN/2011, RELATING TO ASSESSMENT YEAR 2003-04, VIDE ORDER DATED 15.01.2014, IN SIMILAR CIRCUMSTANCES HAD HELD THAT THE TRANSACTION OF PURCHASE AND SALE OF SHARES OF DATABASE FINANCE LTD . WAS A GENUINE TRANSACTION AND THE CLAIM OF LONG TERM CAPITAL GAIN WAS ALLOWED IN THE HANDS OF THE ASSESSEE THEREIN. IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES AND THE CASE LAWS, WE FIND NO MERIT IN THE ORDER OF CIT(A) AND REVERSING THE SAME, WE DIRECT THE ASSESSING OFFICER TO COMPUTE TH E INCOME IN THE HANDS OF THE ASSESSEE UNDER THE HEAD INCOME FROM LONG TERM CAPITAL GAINS. THUS, THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE ALLOWE D. 23. NOW, COMING TO ITA NO.2008/PN/2012, IN WHICH TH E ISSUE RAISED IS AGAINST THE LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT, WHICH WAS LEVIED AGAINST THE ADDITION MADE IN THE HANDS OF THE ASSES SEE ON ACCOUNT OF THE SALE OF SHARES OF M/S. FAST TRACK ENTERTAINMENT LTD. BEI NG HELD AS INCOME FROM OTHER SOURCE. SINCE, WE HAVE ALREADY HELD THAT THE INCOME FROM SALE OF SHARES IS ASSESSABLE IN THE HANDS OF THE ASSESSEE AS INCOM E FROM CAPITAL GAINS AND THE ASSESSEE HAVING FURNISHED THE SAME UNDER THE SA ID HEAD IN THE RETURN OF INCOME, THERE IS NO MERIT IN THE LEVY OF PENALTY UN DER SECTION 271(1)(C) OF THE ITA NO.2008/PN/2012 ITA NO.372/PN/2014 MRS PUSHPALATA OMPRAKASH BHANDARI 15 ACT AND THE SAME IS DELETED. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THIS REGARD, ARE ALLOWED. 24. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON THIS 18 TH DAY OF MARCH, 2015. SD/- SD/- (G.S. PANNU) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 18 TH MARCH, 2015. GCVSR COPY OF THE ORDER IS FORWARDED TO: - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, PUNE; 4) THE CIT-II, PUNE; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE