ACIT, New Delhi V. Sh. Bhuwaneshwar Prasad Singh, New Delhi

ITA 3807/DEL/2011

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3097 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 15-05-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 10-08-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: S KRISHNAN
• Keywords: Business income; Income from undisclosed sources; Reason to believe
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SH. I.C.SUDHIR, JUDICIAL MEMB ER AND SH.ANADEE NATH MISSHRA, ACCOUNTANT MEMBER I.T.A .NO.-3807/DEL/2011 (ASSESSMENT YEAR-2007-08) ACIT, CIRCLE-31(1), ROOM NO.-185A, C.R.BUILDING, I.P.ESTATE, NEW DELHI. ( APPELLANT) VS BHUWANESHWAR PRASAD SINGH, 10-G, DCM BUILDING, 16, BARAKHAMBA ROAD, NEW DELHI. PAN-ADOPS9838F (RESPONDENT) ASSESSEE BY SH. S.KRISHNAN, ADV. REVENUE BY SH.S.K.JAIN, SR.DR ORDER PER ANADEE NATH MISSHRA, ACCOUNTANT MEMBER (A). THE PRESENT APPEAL HAS BEEN FILED BY THE REVEN UE AGAINST THE ORDER DATED 18.05.2011 OF CIT(A)-XXVI, NEW DELHI PE RTAINING TO A.Y. 2007-08. GROUNDS OF APPEAL ARE AS UNDER:- (A). ON FACTS AND CIRCUMSTANCES OF THE CASE, WHETH ER THE LD.CIT(A) HAS ERRED BY TREATING BUSINESS INCOME AS HELD BY THE A.O. AMOUNTING TO RS.45,97,508/- AS SHORT TERM CAPI TAL GAIN PARTICULARLY WHEN THE NATURE AND THE MANNER IN WHIC H TRANSACTIONS OF SALE/PURCHASE HAS BEEN UNDERTAKEN BY THE BROKERS ON BEHALF OF THE ASSESSEE SHOWS THAT THESE ARE NOT IN THE NATURE OF INVESTMENT BUT BUSINESS ACTIVITY. (B). ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WH ETHER THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 80,32,765/- PAGE 2 OF 12 ITA NO.3807/DEL/2011 ACIT VS BHUWANESHWAR PRASAD SINGH TREATED AS INCOME FROM UNDISCLOSED SOURCES WHEN A.O . HAS REASON TO BELIEVE THAT THE ASSESSEE HAS USED THE MODUS OPE RANDI TO INVEST RS.80,32,765/- THROUGH HIS INCOME FROM UNDISCLOSED SOURCES. (B.) THE RETURN WAS FILED BY THE ASSESSEE ON 15.11.2007 SHOWING INCOME OF RS.57,15,384/-. IN THE RETURN OF INCOME, THE ASSESSEE HAD SHOWN SHORT TERM CAPITAL GAIN AMOUNTING TO RS.45,97 ,508/- ON SALE OF SHARES AND HAD ALSO IN ADDITION SHOWN LONG TERM CA PITAL GAIN AMOUNTING TO RS.80,32,765/- ON SALE OF SHARES. THE ASSESSING OFFICER (IN SHORT AO) VIDE ASSESSMENT ORDER DATED 29.12. 2009 U/S 143(3) OF I.T.ACT, 1961 (IN SHORT ACT) ASSESSED THE AFORESA ID AMOUNT OF RS.45,97,508/- AS BUSINESS INCOME AND ASSESSED THE AFORESAID RS.80,32,765/- AS INCOME FROM UNDISCLOSED SOURCES. THE ASSESSEE FILED APPEAL BEFORE LD. COMMISSIONER OF INCOME TAX (APPEAL) [IN SHORT CIT(A)]. VIDE APPELLATE ORDER DATED 18.05.2011, THE LD.CIT(A) REVERSED THE ORDER OF THE AO ON THE ISSUE OF TREATM ENT OF THE AFORESAID AMOUNT OF RS.80,32,765/- AS INCOME FROM UNDISCLOSED SOURCES, AND HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED I N MAKING ADDITION TO THE INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOS ED SOURCES ON ACCOUNT OF LONG TERM CAPITAL GAINS DECLARED BY THE ASSESSEE. AS FAR AS AFORESAID AMOUNT OF RS.45,97,508/- (SHOWN BY THE AS SESSEE AS SHORT TERM CAPITAL GAIN BUT ASSESSED BY THE AO AS BUSINES S INCOME) IS PAGE 3 OF 12 ITA NO.3807/DEL/2011 ACIT VS BHUWANESHWAR PRASAD SINGH CONCERNED, THE LD.CIT(A) DIRECTED THE AO TO TREAT A N AMOUNT OF RS.45,51,746/- AS SHORT TERM CAPITAL GAIN AS DECLAR ED BY THE ASSESSEE AND NOT AS INCOME FROM BUSINESS; WHILE UPHOLDING AS SESSMENT OF BALANCE AMOUNT OF RS.45,761/- AS BUSINESS INCOME. THE PRESENT APPEAL BEFORE US HAS BEEN FILED BY THE REVENUE AGAI NST AFORESAID ORDER DATED 18.05.2011 OF LD.CIT(A). DURING APPELLATE PR OCEEDINGS IN ITAT, THE ASSESSEE FILED A PAPER BOOK CONTAINING 25 PAGES . THE ASSESSEE ALSO FILED PAPERS CONTAINING BROKERS NOTES FOR PURCHASE AND SALE OF SHARES OF RELIANCE CAPITAL TO SUPPORT THE CLAIM OF LONG TERM CAPITAL GAIN. HE ALSO CONTENDED THAT LD.CIT(A) GRANTED RELIEF TO THE ASSESSEE WITHOUT SUFFICIENT MATERIAL. AT THE TIME OF HEARING BEFORE US, LD. DEPARTMENTAL REPRESENTATIVE (IN SHORT DR) SUPPORTED THE ORDER OF THE AO BY HIGHLIGHTING RELEVANT PORTIONS OF THE ASSESSMENT OR DER. AT THE SAME TIME, LD. COUNSEL FOR THE ASSESSEE SUPPORTED THE OR DER OF THE LD.CIT(A) BY READING OUT RELEVANT PORTIONS OF APPELLATE ORDER PASSED BY THE LD.CIT(A). ON THE ISSUE OF THE AMOUNT OF RS.45,51,7 46/- SHOWN BY THE ASSESSEE AS SHORT TERM CAPITAL GAIN AND UPHELD BY T HE LD.CIT(A), HE DREW OUR SPECIAL ATTENTION TO THE CASE OF GOPAL PUROHIT VS JCIT 20 DTR 99 [DELHI]; WHICH WAS ALSO DULY CONSIDERED BY LD.CIT(A) IN HIS ORDER. PAGE 4 OF 12 ITA NO.3807/DEL/2011 ACIT VS BHUWANESHWAR PRASAD SINGH (C.) WE HAVE HEARD BOTH SIDES PATIENTLY. WE HAVE ALSO PERUSED ALL MATERIALS ON RECORD CAREFULLY. AS FAR AS THE FIRST GROUND OF APPEAL REGARDING TREATMENT OF AMOUNT SHOWN BY THE ASSESSEE AS SHORT TERM CAPITAL GAIN AND UPHELD BY LD.CIT(A) IS CONCERNED; THE CONTRARY VIEW OF THE AO WHO TREATED THE AMOUNT AS BUSINESS INCOME, W AS BASED ON HIS UNDERSTANDING THAT THE MAGNITUDE AND FREQUENCY OF S HARE TRANSACTIONS WAS HIGH, THAT PERIOD FOR WHICH SHARES WERE HELD (I .E. HOLDING PERIOD) WAS SMALL AND THAT THE MOTIVE OF THE ASSESSEE WAS T O REALIZE PROFITS. THE LD.CIT(A) REVERSED THIS VIEW OF THE AO GIVING D ETAILED REASONS. THE RELEVANT PORTION OF THE ORDER OF LD.CIT(A) IS REPRO DUCED AS UNDER:- 7.7. ..IT IS OBSERVED THAT AS REGARDS THE LAW P OINT IN VARIOUS CASES, COURTS HAVE TAKEN THEIR VIEWS BASED ON THE FACTS ON RECORD HENCE THERE ARE CLEAR-CUT PRINCIPLE S TO DECIDE ON THESE TYPES OF CASES WHICH HAVE TO BE DECIDED ON INDIVIDUAL MERITS AND FACTS ON RECORD OF THAT CASE. THE CASE LAW OF GOPAL PUROHIT (SUPRA) RELIED UPON BY THE ASS ESSEE THROWS LIGHT ON THE BASIS TO BE ADOPTED TO DIFFEREN TIATE BETWEEN CAPITAL GAINS AND BUSINESS INCOME. THIS CAS E HAS BEEN DECIDED ON THE FACTS THAT THE ASSESSEE IN THIS CASE WAS A TRADER IN SHARES AND HOW TO DEMARCATE THE BUSINES S INCOME FROM CAPITAL GAINS AS EXPLAINED IN AN EARLIER CASE OF SARNATH INFRASTRUCTURE P LTD (SUPRA). THE HON'BLE TRIBUNAL HAS STATED THAT AFTER CONSIDERING ABOVE RULINGS AND VARIOUS PR OVISIONS OF PAGE 5 OF 12 ITA NO.3807/DEL/2011 ACIT VS BHUWANESHWAR PRASAD SINGH THE CIRCULARS ISSUED BY THE CBDT, WE CULL OUT FOLLO WING PRINCIPLES WHICH CAN BE APPLIED ON THE FACTS OF A C ASE TO FIND OUT WHETHER TRANSACTION(S) IN QUESTION ARE IN THE N ATURE OF TRADE OR ARE MERELY FOR INVESTMENT PURPOSES: (1) WHAT IS THE INTENTION OF THE ASSESSEE AT THE TI ME OF PURCHASE OF THE SHARES (OR ANY OTHER ITEM)? THIS CA N BE FOUND OUT FROM THE TREATMENT IT GIVES TO SUCH PURCH ASE IN ITS BOOKS OF ACCOUNT. WHETHER IT IS TREATED AS STOC K-IN- TRADE OR INVESTMENT? WHETHER SHOWN IN OPENING/CLOSI NG STOCK OR SHOWN SEPARATELY AS INVESTMENT OR NON-TRAD ING ASSET? IN THE CASE OF THE APPELLANT, IT HAS BEEN SH OWN AS INVESTMENT IN HIS BOOKS OF ACCOUNT AND BALANCE SHEE T FILED ON RECORD. (2) WHETHER ASSESSEE HAS BORROWED MONEY TO PURCHASE AND PAID INTEREST THEREON? NORMALLY, MONEY IS BORRO WED TO PURCHASE GOODS FOR THE PURPOSES OF TRADE AND NOT FOR INVESTING IN AN ASSET FOR RETAINING. IN THE CASE OF APPELLANT, NO MONEY WAS BORROWED BY THE APPELLANT. (3) WHAT IS THE FREQUENCY OF SUCH PURCHASES AND DIS POSAL IN THAT PARTICULAR ITEM? IF PURCHASE AND SALE ARE F REQUENT, OR THERE ARE SUBSTANTIAL TRANSACTIONS IN THAT ITEM, IT WOULD INDICATE TRADE. HABITUAL DEALING IN THAT PARTICULAR ITEM IS INDICATIVE OF INTENTION OF TRADE. SIMILARLY, RATIO BETWEEN THE PURCHASES AND SALES AND THE HOLDINGS MAY SHOW WHETHER THE ASSESSEE IS TRADING OR INVESTING (HIGH TRANSACTIONS AND LOW HOLDINGS INDICATE TRADE WHEREA S LOW PAGE 6 OF 12 ITA NO.3807/DEL/2011 ACIT VS BHUWANESHWAR PRASAD SINGH TRANSACTIONS AND HIGH HOLDINGS INDICATE INVESTMENT) . IN THE INSTANT CASE, THERE ARE 49 TRANSACTIONS IN THE ENTIRE YEAR FOR THE PURCHASE OF SHARES OF 5 COMPANIES AND WHICH HAVE SHOWN SUBSTANTIAL GAIN IN VALUE WITHIN THE YEA R AND HAVE BEEN SOLD BY THE YEAR END. (4) WHETHER PURCHASE AND SALE IS FOR REALIZING PROF IT OR PURCHASES ARE MADE FOR RETENTION AND APPRECIATION I N ITS VALUE? FORMER WILL INDICATE INTENTION OF TRADE AND LATTER, AN INVESTMENT. IN THE CASE OF SHARES WHETHER INTENT ION WAS TO ENJOY, DIVIDEND AND NOT MERELY EARN PROFIT O N SALE AND PURCHASE OF SHARES. A COMMERCIAL MOTIVE IS AN ESSENTIAL INGREDIENT OF TRADE. IT HAS BEEN SUBMITTE D THAT THERE WAS NO COMMERCIAL MOTIVE INVOLVED IN CASE OF THE APPELLANT AS THESE TRANSACTIONS WERE DONE ON THE BA SIS OF VARIOUS NEWS AND MARKET REPORTS. (5). HOW THE VALUE OF THE ITEMS HAS BEEN TAKEN IN T HE BALANCE SHEET? IF THE ITEMS IN QUESTION ARE VALUED AT COST, IT WOULD INDICATE THAT THEY ARE INVESTMENT: OR WHER E THEY ARE VALUED AT COST OR MARKET VALUE OR NET REALI ZABLE VALUER (WHICHEVER IS LESS), IT WILL INDICATE THAT I TEMS IN QUESTION ARE TREATED AS STOCK-IN TRADE. IN CASE OF THE APPELLANT, THE SHARES HAVE VALUES AT COST AND TREAT ED AS INVESTMENTS. (6) HOW THE COMPANY (ASSESSEE) IS AUTHORIZED IN MEMORANDUM OF ASSOCIATION/ ARTICLES OF ASSOCIATION? WHETHER FOR TRADE OR FOR INVESTMENT? IF AUTHORIZED ONLY FOR PAGE 7 OF 12 ITA NO.3807/DEL/2011 ACIT VS BHUWANESHWAR PRASAD SINGH TRADE, THEN WHETHER THERE ARE SEPARATE RESOLUTIONS OF THE BOARD OF DIRECTORS TO CARRY OUT INVESTMENTS IN THAT COMMODITY? AND VICE VERSA. THIS POINT IS NOT APPLIC ABLE TO THE APPELLANT. (7) IT IS FOR THE ASSESSEE TO ADDUCE EVIDENCE TO SH OW THAT HIS HOLDING IS FOR INVESTMENT OR FOR TRADING AND WH AT DISTINCTION HE HAS KEPT IN THE RECORDS OR OTHERWISE , BETWEEN TWO TYPES OF HOLDINGS. IF THE ASSESSEE IS A BLE TO DISCHARGE THE PRIMARY ONUS AND COULD PRIMA FACIE SH OW THAT PARTICULAR ITEM IS HELD AS INVESTMENT (OR SAY, STOCK-IN- TRADE) THEN ONUS WOULD SHIFT TO REVENUE TO PROVE TH AT APPARENT IS NOT REAL. IN THE PRESENT CASE, THE APPE LLANT HAS ADDUCED SUFFICIENT EVIDENCE TO SHOW THAT HIS HO LDING IS FOR INVESTMENT WHICH THE ASSESSING OFFICER HAS N OT BEEN ABLE TO DISPROVE. (8) THE MERE FACT OF CREDIT OF SALE PROCEEDS OF SHA RES (OR FOR THAT MATTER ANY OTHER ITEM IN QUESTION) IN A PA RTICULAR ACCOUNT OR NOT SO MUCH FREQUENCY OF SALE AND PURCHA SE WILL ALONE NOT BE SUFFICIENT TO SAY THAT ASSESSEE W AS HOLDING THE SHARES (OR THE ITEMS IN QUESTION) FOR INVESTMENT. THE COPY OF THE LEDGER ACCOUNT AND THE CONTRACT NOTES REFLECT THE ASSESSEE TO BE AN INVEST OR. (9) ONE HAS TO FIND OUT WHAT ARE THE LEGAL REQUISIT ES FOR DEALING AS A TRADER IN THE ITEMS IN QUESTION AND WH ETHER THE ASSESSEE IS COMPLYING WITH THEM. WHETHER IT IS THE ARGUMENT OF THE ASSESSEE THAT IT IS VIOLATING THOSE LEGAL PAGE 8 OF 12 ITA NO.3807/DEL/2011 ACIT VS BHUWANESHWAR PRASAD SINGH REQUIREMENTS, F IT IS CLAIMED THAT IT IS DEALING AS A TRADER IN THAT ITEM? WHETHER IT HAD SUCH AN INTENTION (TO CARRY ON ILLEGAL BUSINESS IN THAT ITEM) SINCE BEGINNING OR W HEN PURCHASES WERE MADE? THE ASSESSEE IS AN INVESTOR AN D HAS DEALT IN SHARES THROUGH THE BROKER ITSELF AND H AS TRADED IN HIS OWN NAME ONLY. (10) IT IS PERMISSIBLE AS PER CBDT CIRCULAR NO. 4 OF 2007 OF 15TH JUNE, 2007 THAT AN ASSESSEE CAN HAVE B OTH PORTFOLIOS, ONE FOR TRADING AND OTHER FOR INVESTMEN T PROVIDED IT IS MAINTAINING SEPARATE ACCOUNT FOR EAC H TYPE, THERE ARE DISTINCTIVE FEATURES FOR BOTH AND THERE I S NO INTERMINGLING OF HOLDINGS IN THE TWO PORTFOLIOS. TH E ASSESSEE HAS INVESTMENT PORTFOLIO ONLY. (11) NOT ONE OR TWO FACTORS OUT OF ABOVE ALONE WIL L BE SUFFICIENT TO COME TO A DEFINITE CONCLUSION BUT THE CUMULATIVE EFFECT OF SEVERAL FACTORS HAS TO BE SEEN . IN THE INSTANT CASE, THE ENTIRE FACTS & CIRCUMSTANCES OF T HE CASE CLEARLY LEAD TO THE CONCLUSION THAT THE PURCHASE/SA LE OF SHARES BY THE ASSESSEE HAS TO BE TREATED AS AN INVESTMENT ACTIVITY AND NOT AS TRADING IN VIEW OF T HE FOLLOWING FACTS AS BROUGHT OUT IN THE PRECEDING PARAGRAPHS; AS PER THE BOOKS OF ACCOUNTS, THE ASSESSE E HAS TREATED THE ENTIRE INVESTMENT AS INVESTMENT AND NOT AS STOCK IN TRADE. PAGE 9 OF 12 ITA NO.3807/DEL/2011 ACIT VS BHUWANESHWAR PRASAD SINGH THE ENTIRE SHORT TERM CAPITAL GAIN IS FROM EQUI TY SHARES AND WHICH WERE HELD FOR AN AVERAGE OF ABOUT 67 DAYS . THERE WERE NO DERIVATIVE TRANSACTIONS BY THE AS SESSEE. ALL THE TRANSACTIONS WERE DELIVERY BASED (EXCEP T FOR ONE TRANSACTION AND WHICH HAS BEEN RIGHTLY TREATED AS BUSINESS INCOME). THE ASSESSEE IS NOT A SHARE BROKER NOR IS HAVIN G REGISTRATION WITH ANY STOCK EXCHANGE. THE ASSESSEE USED HIS OWN SURPLUS FUNDS FOR INV ESTING IN SHARES AND NOT BORROWED ANY MONEY. THE ASSESSEE HAS DECLARED DIVIDEND INCOME AS WE LL. 7.8. IN VIEW OF THE ABOVE DISCUSSION, AND AFTER CAR EFUL CONSIDERATION OF VARIOUS CASE LAWS REFERRED ABOVE, IT IS HEREBY HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED I N CHANGING THE TREATMENT OF INCOME OF THE APPELLANT FROM SHORT TERM CAPITAL GAINS TO INCOME FROM BUSINESS. THE ASSESSI NG OFFICER IS, ACCORDINGLY, DIRECTED TO TREAT AN AMOUNT OF RS. 45,51,746/- AS SHORT TERM CAPITAL GAINS AS DECLARED BY THE ASSE SSEE AND NOT AS INCOME FROM BUSINESS. HOWEVER, THE BALANCE AMOUNT OF RS.45,761/- HAS BEEN RIGHTLY TREATED AS BUSINESS INCOME BY THE ASSESSING OFFICER WHICH IS HEREBY UPHELD. WE ARE OF THE VIEW THAT THE ORDER OF LD.CIT(A) ON T HIS ISSUE IS JUST, FAIR AND IN ACCORDANCE WITH LAW IN THE FACTS AND CI RCUMSTANCES OF THE CASE; AND THE LD.DR FAILED TO POINT OUT ANY INFIRMI TY, MISTAKE OR PAGE 10 OF 12 ITA NO.3807/DEL/2011 ACIT VS BHUWANESHWAR PRASAD SINGH ILLEGALITY IN THE IMPUGNED ORDER OF LD.CIT(A) ON TH IS ISSUE AND FAILED TO MAKE OUT ANY CASE FOR INTERFERENCE WITH THE IMPUGNE D ORDER ON THIS ISSUE. THE LD.DR ALSO FAILED TO BRING ANY DECIDED PRECEDENTS IN FAVOUR OF THE REVENUE TO WARRANT ANY INTERFERENCE WITH THE ORDER OF LD.CIT(A) ON THIS ISSUE. THEREFORE, WE UPHOLD THE ORDER OF T HE LD.CIT(A) AS FAR AS TREATMENT OF AFORESAID AMOUNT OF RS.45,51,746/- AS SHORT TERM CAPITAL GAIN IS CONCERNED. AS FAR AS THE BALANCE AMOUNT OF RS.45,761/- IS CONCERNED, THE ASSESSEE HAS ACCEPTED ITS TREATMENT AS BUSINESS INCOME AND THERE IS NO DISPUTE BEFORE US REGARDING THIS AM OUNT. HENCE, THERE IS NO NEED FOR US TO ADJUDICATE ON THE AMOUNT OF RS .45,761/-. FOR STATISTICAL PURPOSES, FIRST GROUND OF APPEAL IS DIS MISSED. (C.1.) REGARDING THE OTHER ISSUE OF THE AFORESAID A MOUNT OF RS.80,32,765/- SHOWN BY THE ASSESSEE AS LONG TERM C APITAL GAIN BUT TAXED BY THE AO AS INCOME FROM UNDISCLOSED SOURCES; WE FIND THAT THE LOWER AUTHORITIES [BOTH AO AND LD.CIT(A)] HAVE FAI LED TO CARRY OUT/CAUSE NECESSARY INQUIRIES. WHETHER THIS AMOUNT IS GENUINELY CLAIMED BY THE ASSESSEE AS LONG TERM CAPITAL GAIN O R IT IS INCOME FROM UNDISCLOSED SOURCES AS OPINED BY THE AO WILL DEPEND ON RELEVANT FACTS ALL OF WHICH ARE NOT PRESENTLY AVAILABLE. ONE SUCH RELEVANT FACT, PRESENTLY NOT AVAILABLE BEFORE US, IS WHETHER DIST INCTIVE NUMBERS OF PAGE 11 OF 12 ITA NO.3807/DEL/2011 ACIT VS BHUWANESHWAR PRASAD SINGH PURCHASE TRANSACTIONS IN THE SHARES OF RELIANCE CA PITAL AS PER RECORDS OF STOCK EXCHANGE FOR THE RELEVANT DATE EXA CTLY MATCH WITH DISTINCTIVE NUMBERS OF SALE TRANSACTIONS IN THE SHA RES OF RELIANCE CAPITAL AS PER RECORDS OF STOCK EXCHANGE FOR THE R ELEVANT DATE. TO SUBSTANTIATE HIS CLAIM FOR LONG TERM CAPITAL GAIN O N SALE OF SHARES; THE ASSESSEE NEEDS TO FURNISH CONCLUSIVE EVIDENCE THAT THE SHARES (OF RELIANCE CAPITAL) CLAIMED TO HAVE BEEN SOLD ARE E XACTLY THE SAME SHARES (OF RELIANCE CAPITAL) HAVING REGARD TO COR RESPONDING DISTINCTIVE NUMBERS OF SHARES. CONVINCING MATERIALS CAN ALSO B E PRESENTED WITH THE HELP OF CORRESPONDING ORDER NO., ORDER TIME, TR ADE NO. AND TRADE TIME. FROM THE MATERIALS PRESENTLY AVAILABLE BEFOR E US, IT IS NOT POSSIBLE TO CONCLUDE WHETHER THE SHARES CLAIMED TO HAVE BEEN SOLD BY THE ASSESSEE ARE EXACTLY THE SAME AS THE SHARES CLA IMED TO HAVE BEEN PURCHASED BY THE ASSESSEE AS FAR AS ASSESSEES CL AIM OF LONG TERM CAPITAL GAIN IS CONCERNED. AS RELEVANT FACTS FOR A DJUDICATION OF THIS ISSUE ARE NOT PRESENTLY AVAILABLE; IN THE FITNESS O F THINGS, WE SET ASIDE THE ORDERS OF LD.CIT(A) AND AO ON THIS ISSUE AND RE STORE THE ISSUE IN DISPUTE IN THE SECOND GROUND OF APPEAL TO THE FILE OF THE AO WITH THE DIRECTION TO PASS A FRESH ORDER DENOVO AFTER CARRYING OUT NECESSARY PAGE 12 OF 12 ITA NO.3807/DEL/2011 ACIT VS BHUWANESHWAR PRASAD SINGH INQUIRIES AND AFTER PROVIDING OPPORTUNITY TO THE AS SESSEE. FOR STATISTICAL PURPOSES, THE SECOND GROUND OF APPEAL IS PARTLY AL LOWED. (D.) FOR STATISTICAL PURPOSES, THIS APPEAL OF THE R EVENUE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 19 TH MAY 2017. SD/- SD/- (I.C.SUDHIR) (A NADEE NATH MISSHRA) JUDICIAL MEMBER ACC OUNTANT MEMBER DATE:-19 TH MAY, 2017 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR, ITAT NEW DELHI