IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA (SMC) BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 49/AGRA/2013 ASSTT. YEAR : 2001-02 SMT. DAULAT H. DEBARA, VS. INCOME-TAX OFFICER, 38/5, NAGAR KANTI COLONY, 1(1), AGRA. IDGAH, AGRA. (PAN: AFOPD 7269 R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUBHASH AGARWAL, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 25.02.2013 DATE OF PRONOUNCEMENT OF ORDER : 08.03.2013 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(A)-I, AGRA DATED 14.09.2012 FOR THE ASSESSMENT YEAR 2001- 02. 2. THE LD. COUNSEL FOR THE ASSESSEE DID NOT PRESS G ROUNDS NOS. 1 & 2 OF APPEAL OF THE ASSESSEE. THE SAME ARE ACCORDINGLY DISMISSED . ON THE REMAINING GROUNDS NOS. 3 TO 8, THE ASSESSEE CHALLENGED THE ADDITION O F RS.1,62,000/- U/S. 68 OF THE IT ACT ON ACCOUNT OF SALE OF SHARES TREATED AS INCOME FROM UNDISCLOSED AND UN- EXPLAINED SOURCES. ITA NO. 49/AGRA/2013 2 3. ACCORDING TO THE OFFICE, THE APPEAL IS TIME BARR ED BY TWO DAYS. THE ASSESSEE FILED EXPLANATION FOR CONDONATION OF DELAY SUPPORTE D BY AFFIDAVIT OF THE ASSESSEE TO WHICH THE LD. DR HAS NO OBJECTION FOR CONDONATION O F NOMINAL DELAY. I AM, THEREFORE, SATISFIED THAT THE ASSESSEE HAS REASONAB LE CAUSE FOR FAILURE TO FILE THE APPEAL WITHIN THE PERIOD OF LIMITATION. THE NOMINAL DELAY OF TWO DAYS IN FILING THE APPEAL IS THUS, CONDONED, PARTICULARLY WHEN THE LD. DR HAS NO OBJECTION TO THE SAME. 4. BRIEFLY, THE FACTS OF THE CASE ARE THAT DURING T HE COURSE OF ASSESSMENT PROCEEDINGS, REGARDING SHARE TRANSACTION, IT WAS EX PLAINED BY THE ASSESSEE THAT 2000 SHARES OF M/S. SUPERIOR FIN LESE LTD. WERE PUR CHASED THROUGH M/S. MITHLESH AGARWAL & CO. OF JAIPUR AND THE ABOVE SHARES WERE S OLD ON 05.05.2000 FOR RS.1,62,000/- THROUGH M/S. AGGARWAL & CO. OF DELHI. ON FURTHER ENQUIRY BEING MADE BY THE AO TO EXAMINE THE GENUINENESS OF THE SH ARE TRANSACTION, THE ASSESSEE REPLIED THAT THESE SHARES WERE PURCHASED THROUGH TH E BROKER M/S. MITHLESH AGARWAL & CO. WHEN SHE MET THE BROKER AT HIS SHOP BUT SHE D ID NOT REMEMBER THAT WHAT WAS THE STATUS OF THE PERSONS TO WHOM SHE MET. WITH REG ARD TO THE SALE OF SHARES, IT WAS STATED BY THE ASSESSEE THAT ALL THE PAPERS REQUIRED FOR TRANSFER OF SHARES TO THE SHARE BROKER DULY SIGNED BY HER WERE HANDED OVER TO HIM B UT SHE COULD NOT TELL ABOUT THE TRANSFER DEED, STAMP ON THE TRANSFER DEED AND WHO W ERE THE WITNESS AT THE TIME OF ITA NO. 49/AGRA/2013 3 SIGNING OF TRANSFER DEED AND SHE COULD ALSO NOT EXP LAIN WHETHER THE TRANSACTION WAS THROUGH STOCK EXCHANGE OR IT WAS OFF MARKET TRANSAC TION AND SHE HAS NOT RECEIVED ANY INFORMATION ABOUT THESE SHARES GETTING TRANSFER RED TO THE PURCHASER AFTER THEY WERE SOLD BY HER. IN ORDER TO VERIFY THE GENUINENES S OF THE TRANSACTION FROM THE BROKER, AS REQUESTED BY THE AUTHORIZED REPRESENTATI VE DURING ASSESSMENT PROCEEDINGS, THE AO ISSUED SUMMONS TO BOTH THE BROK ERS ON THE ADDRESSES GIVEN BY THE ASSESSEE BUT THESE SUMMONS HAD BEEN RECEIVED BA CK WITH POSTAL REMARK THAT ONE OF THEM HAD LEFT WITHOUT ADDRESS AND THE OTHER BROKER HAS CLOSED THE SHOP. ON FURTHER ENQUIRY BEING MADE BY THE AO FROM JAIPUR ST OCK EXCHANGE WHERE THE FIRST BROKER M/S. MITHLESH AGARWAL & CO. WAS REGISTERED, IT HAS BEEN INFORMED BY THE EXCHANGE THAT NO TRADING OF SHARES SOLD BY THIS BRO KER TO THE ASSESSEE WAS REPORTED. ON ENQUIRY BEING MADE FROM DELHI STOCK EXCHANGE WHE RE THE SECOND BROKER M/S. AGGARWAL & CO. WAS REGISTERED, THE EXCHANGE SENT DE TAILS OF TRADING DONE BY M/S. AGGARWAL & CO. AND IT HAS BEEN INFORMED THAT NO TR ADING WAS REPORTED DURING THE PERIOD 01.04.1999 TO 31.03.2001 AND IN THE DETAILS OF TRADING IN THE SCRIP OF M/S. SUPERIOR FIN LEASE LTD. DONE BY M/S. AGGARWAL & CO. AS REPORTED, NO SUCH TRANSACTION DONE. AFTER GOING THROUGH ALL THESE INF ORMATION, THE AO CONCLUDED IN THE ASSESSMENT ORDER THAT THE ASSESSEE COULD NOT PR OVE THE SALE / TRANSFER OF SHARES AND SHE COULD NOT EVEN PROVE THAT THE CONTRACT NOTE S / BILLS WERE ISSUED BY THE BROKER, NOR SHE COULD PROVE THE GENUINENESS AND COR RECTNESS OF CONTRACT NOTES AND ITA NO. 49/AGRA/2013 4 TRANSACTIONS REFLECTED THEREIN, NOR THESE THINGS CA N OTHERWISE BE VERIFIED LEADING TO THE CONCLUSION THAT SALE BILLS / CONTRACT NOTES ETC . WERE NOT GENUINE. IN VIEW OF HIS ABOVE CONCLUSION, THE AO HELD IN THE ASSESSMENT ORD ER THAT IT IS PROVED THAT THERE WAS NO ACTUAL SALE OF SHARES BY THE ASSESSEE AND TH E MONEY ALLEGEDLY RECEIVED AS SALE CONSIDERATION OF SHARES WAS IN FACT THE ASSESS EES OWN MONEY WHICH WAS ROUTED THROUGH WITH THE HELP OF BROKER AND OTHER PE RSONS WHO HAD MANAGED SALE BILLS AND DRAFT AND HENCE, ENTIRE AMOUNT OF RS.1,62 ,000/- ALLEGED RECEIVED FROM THE SALE OF SHARES HAS BEEN TREATED BY THE AO AS INCOME FROM UNDISCLOSED SOURCES AND ADDED TO THE INCOME OF THE ASSESSEE U/S. 68 OF THE ACT. 5. THE ADDITION WAS CHALLENGED BEFORE THE LD. CIT(A ) AND THE WRITTEN SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED IN THE A PPELLATE ORDER, IN WHICH THE ASSESSEE BRIEFLY EXPLAINED THAT IN THE RETURN OF IN COME FILED IN THE ASSESSMENT YEAR UNDER APPEAL, LONG-TERM CAPITAL GAINS WAS DECLARED AT RS.1,56,540/- AND WORKING OF THE SAME HAS BEEN FILED. ALL THE STATEMENTS WERE SU PPORTED BY DOCUMENTS AND STATEMENT ISSUED BY SHARE BROKER, M/S. MITHLESH AGA RWAL & CO., JAIPUR. THE PURCHASE BILL NO. 1183 DATED 05.04.1999 IS DULY MEN TIONED IN THE STATEMENT ISSUED BY SHARE BROKERS AND THE NUMBER OF SHARES PURCHASED WERE 2000 AT THE RATE OF RS.2.25 IN TOTAL SUM OF RS.4710/-. THESE SHARES WER E SOLED @ RS.81/- EACH, TOTALING TO VALUE OF RS.1,62,000/- AND PAYMENT WAS RECEIVED THROUGH DEMAND DRAFT. ITA NO. 49/AGRA/2013 5 THE SALE WAS MADE THROUGH SHARE BROKER, M/S. AGARWA L & CO., NEW DELHI ON 05.05.2000. THE PURCHASE BILL AND CONTRACT NOTE WER E FILED AND CAPITAL GAINS WORKED OUT ON THE SAME HAVE BEEN SHOWN IN THE RETUR N OF INCOME. THE ASSESSEE HAD DEPOSITED THE AMOUNT OF RS.1,50,000/- WITH M/S. HINDUSTAN CRUSHERS AND FERTILIZERS CO., AGRA ON 04.08.2000 OUT OF THE SALE PROCEEDS OF ABOVE SHARES. SINCE IT IS AN OLD MATTER OF MARCH, 1999 AND ENQUIRIES WE RE MADE SOMETIME IN MAY, 2005 AND THE BROKERS ARE NOT AVAILABLE AT THE GIVEN ADDR ESS, NOTHING COULD BE ATTRIBUTED AGAINST THE ASSESSEE. THE DEPARTMENT HAS NO EVIDENC E ON RECORD THAT PURCHASE AND SALES WERE NOT MADE. NON-SERVICE OF NOTICE UPON THE BROKER DOES NOT MEAN THAT THE SHARE BROKER WAS NOT EXISTING IN THE RELEVANT PERIO D. IT WAS SUBMITTED THAT ALL THE EVIDENCES OF PURCHASES AND SALES ARE AVAILABLE ON R ECORD OF THE DEPARTMENT. THEREFORE, THE ASSESSEE PROVED GENUINELY MADE PURCH ASES AND SALES OF SHARES. AT THE APPELLATE STAGE, THE LD. CIT(A) DIRECTED THE AO TO MAKE ENQUIRIES FROM SEBI REGARDING THE GENUINENESS OF THE TRANSACTION. THE A O FILED THE REMAND REPORT AFTER MAKING ENQUIRIES FROM SEBI, NEW DELHI, M/S. SUPERIO R FIN LEASE LTD. DELHI AND JAIPUR STOCK EXCHANGE ASSOCIATES LTD., JAIPUR. JAIP UR STOCK EXCHANGE INTIMATED THAT NO TRANSACTIONS HAVE BEEN DONE THROUGH SHARE S TOCK EXCHANGE LIMITED AND NO OFF MARKET TRANSACTIONS HAVE BEEN INFORMED. M/S. SU PERIOR FIN LEASE LTD. SUBMITTED THAT DESIRED INFORMATION CANNOT BE PROVID ED AS RECORDS ARE NOT AVAILABLE. NO REPORT HAS BEEN RECEIVED FROM BOTH THE BROKERS. THE ASSESSEE WAS PROVIDED THIS ITA NO. 49/AGRA/2013 6 INFORMATION GIVEN IN THE REMAND REPORT. THE ASSESSE E ALSO FILED ORDER OF CIT(A), AGRA IN THE CASE OF RELATIVE OF ASSESSEE SHRI PORUS H H. DABARA, IN WHICH SIMILAR SCRIP OF THE SAME COMPANY WERE SOLD AND CAPITAL GAI N HAS BEEN ACCEPTED. OTHER DECISIONS OF THE TRIBUNAL HAVE BEEN RELIED UPON. TH E LD. CIT(A) CONSIDERING THE MATERIAL ON RECORD OBSERVED THAT EARLIER WHEN ENQUI RIES WERE MADE FROM M/S. SUPERIOR FIN LEASE LTD., NO INFORMATION AS AVAILABL E. HOWEVER, FROM THE ASSESSMENT RECORD, IT WAS FOUND THAT ENQUIRY WAS AL SO MADE BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE LETTER WAS RECEIVED BY THE AO, IN WHICH IT WAS INFORMED THAT NO SUCH SHARES WERE TRANSFERRE D IN THE NAME OF ASSESSEE. SUBSEQUENTLY, WHEN THIS FACT WAS CONFRONTED TO THE ASSESSEE, THE ASSESSEE FILED LETTER DATED 01.09.2006 (PB-26) FROM THE COMPANY AN D IN THE SAID LETTER, IT HAS BEEN CLARIFIED BY THE COMPANY, M/S. SUPERIOR FIN LEASE L TD. THAT THE SHARES OF THEIR COMPANY WERE TRANSFERRED IN THE NAME OF ASSESSEE ON 01.05.1999 AFTER IT HAS BEEN CLAIMED TO BE PURCHASED BY THE ASSESSEE FROM M/S. M ITHLESH AGARWAL & CO. OF JAIPUR. THE LD. CIT(A) CONSIDERING THE CLARIFICATIO N ISSUED BY THE COMPANY, WHO HAS TRANSFERRED THE SHARES, ACCEPTED THE CLAIM OF T HE ASSESSEE THAT SHARES WERE HELD BY THE ASSESSEE AFTER IT WAS PURCHASED BY HER AND W ERE TRANSFERRED IN THE NAME OF ASSESSEE ON 01.05.1999. THE LD. CIT(A), HOWEVER, FO UND THAT THESE SHARES WERE NOT FURTHER TRANSFERRED IN THE NAME OF ANY OTHER PERSON S, THEREFORE, THESE WERE EXISTING IN THE NAME OF THE ASSESSEE TILL THE SAME WERE CLAI MED TO HAVE BEEN SOLD BY THE ITA NO. 49/AGRA/2013 7 ASSESSEE ON 05.05.2000. THE LD. CIT(A) FURTHER OBSE RVED THAT SINCE INFORMATION HAVE BEEN RECEIVED FROM TWO OF THE STOCK EXCHANGES AT JAIPUR AND DELHI THAT NO SHARES WERE TRANSFERRED, THEREFORE, IT COULD NOT BE VERIFIED THE GENUINENESS OF THE SALES. FURTHER, THE RATE OF RS.81/- PER SHARE AT WH ICH THE SHARES ARE STATED TO HAVE BEEN SOLD, HAS NOT BEEN SUPPORTED BY ANY EVIDENCE. THEREFORE, THE RATES ARE ALSO NOT PROVED AND IT WAS ALSO FOUND THAT SHARES WERE AT VE RY LOW RATE AT RS.3.15. THE LD. CIT(A) FURTHER OBSERVED THAT SINCE THOSE WERE OFF M ARKET TRANSACTIONS, THEREFORE, SALES ARE MADE AGAINST THE GUIDELINES ISSUED BY SEB I AND CANNOT BE TREATED AS GENUINE TRANSACTION. THE LD. CIT(A) RELIED UPON THE ORDER OF THE ITAT, CHANDIGARH BENCH IN THE CASE OF BALBIR CHAND MAINI VS. CIT, 11 1 TTJ 160 AND REJECTED THE CLAIM OF ASSESSEE FOR GENUINE SALES OF SHARES AND A CCORDINGLY CONFIRMED THE ADDITION OF RS.1,62,000/-. 6. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND REFERRED TO THE CONTRACT NOTE , BILL OF THE BROKER, M/S. AGARWAL & CO. THROUGH WHOM SHARES WERE SOLD AND AMOUNTS HAV E BEEN RECEIVED THROUGH DEMAND DRAFT, COPIES OF WHICH ARE FILED AT PAGES 23 , 24 & 25 OF THE PAPER BOOK. HE HAS SUBMITTED THAT THE PURCHASE OF SHARES IN EARLIE R YEAR HAVE NOT BEEN DISPUTED AND THE ASSESSEE DID NOT MAKE ANY CLAIM OF STILL HOLDIN G THE SHARES WITH HER AND SINCE THE PAYMENTS HAVE BEEN RECEIVED OF SALE CONSIDERATI ON THROUGH BANKING CHANNEL. ITA NO. 49/AGRA/2013 8 THEREFORE, THE ASSESSEE HAS BEEN ABLE TO PROVE GENU INE TRANSACTION OF PURCHASE AND SALES. HE HAS SUBMITTED THAT IT WAS A MATTER OF 199 9 AND BROKERS WERE NOT AVAILABLE AT THE GIVEN ADDRESS AFTER A LONG PERIOD OF MORE TH AT A DECADE, NOTHING COULD BE ATTRIBUTED AGAINST THE ASSESSEE. AS REGARDS THE SAL E RATE OF SHARES, HE HAS RELIED UPON THE ORDER OF THE ITAT, AGRA BENCH IN THE CASE OF KANTI PRASAD AGARWAL, HUF VS. ACIT, CENTRAL CIRCLE, AGRA IN ITA NO. 324/AGRA/ 2006 OF A.Y. 2001-02 DATED 08.10.2009, IN WHICH THE SHARES OF THE SAME COMPANY , M/S. SUPERIOR FIN LEASE LTD. WERE PURCHASED THROUGH MITHLESH AGARWAL & CO. AND WERE SOLD TO M/S. AGGARWAL & CO. AT THE SAME RATE OF RS.81/- AND IT W AS ALSO OFF MARKET TRANSACTION AND CLAIM OF ASSESSEE HAS BEEN ACCEPTED AND THE APP EAL OF THE ASSESSEE HAS BEEN ALLOWED. THE ORDER OF THE TRIBUNAL IS PLACED ON REC ORD. HE HAS, THEREFORE, SUBMITTED THAT WHEN SIMILAR SALE RATE HAS BEEN ACCE PTED, IT CANNOT BE STATED TO BE AN ARTIFICIAL RATE ADOPTED BY THE ASSESSEE. HE HAS ALS O RELIED UPON THE ORDER OF AGRA BENCH OF ITAT IN THE CASE OF ACIT VS. RAM PRAKASH G ARG IN ITA NO. 237/2011 FOR THE ASSESSMENT YEAR 2001-02 DATED 18.01.2013 IN WHICH IN SIMILAR CIRCUMSTANCES BY FOLLOWING THE DECISION OF HONBLE ALLAHABAD HIGH COURT , THE DEPARTMENTAL APPEAL HAS BEEN DISMISSED. ON THE OTHE R HAND, THE LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND ALSO RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS SHRI DURGA PRAS AD MORE, 82 ITR 540. THE LD. COUNSEL FOR THE ASSESSEE IN THE REJOINDER ALSO SUBM ITTED THAT THE FACTS IN THE CASE OF ITA NO. 49/AGRA/2013 9 BALBIR CHAND MAINI (SUPRA) AS RELIED UPON BY THE LD . CIT(A) IS CLEARLY DISTINGUISHABLE ON FACTS BECAUSE IN THAT CASE, THE FINDING OF FACT WAS RECORDED THAT THE PURCHASES AND SALES OF SHARES ARE NOT GENUINE A ND FURTHER, THE SHARES WERE STANDING IN THE NAME OF ASSESSEE AND THE RATE OF SA LE OF SHARES WERE FOUND TO BE ARTIFICIALLY RAISED BY STRUCTURED TRANSACTION AND S UCH RATES WERE NOT FOUND TO BE GENUINELY QUOTED IN ANY STOCK EXCHANGE. 7. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL AVAILABLE ON RECORD. AO AT THE ASSESSMENT STAGE FOUND THAT THE PURCHASE OF SHARES IS ALSO NOT GENUINE. THE LD. CIT(A) AT THE APPELLATE STAGE CALLED FOR TH E REMAND REPORT FROM THE AO AND ALSO PERUSED THE ASSESSMENT RECORD AND FOUND THAT A S PER INFORMATION WITH THE AO, NO SUCH SHARES WERE PURCHASED IN THE NAME OF THE AS SESSEE. HOWEVER, THE ASSESSEE AT THE APPELLATE PROCEEDINGS FILED LETTER DATED 12. 09.2006 ISSUED BY M/S. SUPERIOR FIN LEASE LTD., IN WHICH THE COMPANY HAS CLARIFIED THAT THERE WAS CONFUSION ABOUT THE NAME OF ASSESSEE AND IT WAS NOW CONFIRMED THAT THE SHARES WERE PURCHASED BY THE ASSESSEE AND ARE TRANSFERRED IN THE NAME OF ASS ESSEE ON 01.05.1999. IT WAS ALSO CLAIMED THAT SHARES WERE PURCHASED FROM MITHLESH AG ARWAL & CO OF JAIPUR. THE LD. CIT(A), THEREFORE, ON PROPER EXAMINATION OF CONTRAC T NOTES, BILL AND CONFIRMATION FROM M/S. SUPERIOR FIN LEASE LTD. ACCEPTED THE CONT ENTION OF THE ASSESSEE THAT THE ASSESSEE GENUINELY HELD THE SHARES AS THE SAME HAVE BEEN PURCHASED BY HER AND ITA NO. 49/AGRA/2013 10 TRANSFERRED IN THE NAME OF ASSESSEE. THE ASSESSEE I N THE PAPER BOOK ALSO FILED COPY OF IT RETURNS FOR PRECEDING ASSESSMENT YEAR 2000-01 IN WHICH THE ASSESSEE IN THE COMPUTATION OF INCOME HAS DISCLOSED PURCHASE OF SHA RES AND THE CONSIDERATION PAID FOR THE SAME. THEREFORE, IT IS PROVED ON RECORD THA T THE ASSESSEE GENUINELY PURCHASED SHARES, WHICH WERE STANDING IN THE NAME O F THE ASSESSEE EVEN IN THE RECORDS OF THE COMPANY, M/S. SUPERIOR FIN LEASE LTD . THE LD. CIT(A) FURTHER FOUND THAT THERE IS NO SUPPORTING EVIDENCE OF SELLI NG THE SHARES AT THE RATE OF 81/- PER SHARE AND SINCE THESE WERE OFF MARKET TRANSACTI ONS, THEREFORE, STOCK EXCHANGE HAVE NOT BEEN ABLE TO CONFIRM THE SALE RATE. THE LD . CIT(A) FOLLOWING THE DECISION OF CHANDIGARH BENCH IN THE CASE OF BALBIR CHAND MAI NI (SUPRA) FOUND THAT RATE OF SALES OF SHARES ARE ARTIFICIALLY RAISED BY STRUCTUR ED TRANSACTION. THIS HAS PROMPTED THE LD. CIT(A) TO CONFIRM THE FINDINGS OF AO CONSID ERING THE AMOUNT IN QUESTION RECEIVED ON SALE OF SHARES AS INCOME FROM UNDISCLOS ED SOURCES. THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED UPON THE ORDER OF THE ITAT, AGRA BENCH IN THE CASE OF KANTI PRASAD AGARWAL HUF (SUPRA) WHICH PERTAINED TO THE S AME ASSESSMENT YEAR UNDER APPEAL, I.E., 2001-02. IN THIS CASE, THE ISSUE IS I DENTICAL, IN WHICH ONE OF THE ISSUE WAS REGARDING GENUINE PURCHASE AND SALE OF THE SHAR ES OF SIMILAR COMPANY, M/S. SUPERIOR FIN LEASE LTD. AND THE SHARES WERE PURCHAS ED FROM MITHLESH AGARWAL & CO. AND SOLD TO AGGARWAL & CO. AT THE RATE OF RS.81 /-. SIMILAR INFORMATION WAS RECEIVED FROM THE STOCK EXCHANGE. SIMILAR CONTRACT NOTE AND PURCHASE BILLS WERE ITA NO. 49/AGRA/2013 11 FOUND AND IT WAS FOUND THAT THE SHARES HAVE BEEN TR ANSFERRED AT THE RATE OF RS.81/- PER SHARE AND THOSE WERE OFF MARKET TRANSACTIONS WH ICH WERE NOT ROUTED THROUGH STOCK EXCHANGE. THE TRIBUNAL IN THIS CASE FOUND THA T THE ASSESSEE HAS MADE PURCHASE OF SHARES GENUINELY AND SALES HAVE BEEN MA DE THROUGH THE BROKER AND SALE PRICE IS SUPPORTED BY QUOTED PRICE AND DOCUMENTARY EVIDENCE AND AMOUNTS HAVE BEEN RECEIVED THROUGH DEMAND DRAFT. THEREFORE, THE ADDITION WAS DELETED AND THE APPEAL OF THE ASSESSEE HAS BEEN ALLOWED. THUS, FROM THE ORDER OF THE TRIBUNAL IN THE CASE OF KANTI PRASAD AGARWAL (SUPRA), IT IS PROVED THAT THE RATE OF SALE OF SHARES OF THE SAME COMPANY, M/S. SUPERIOR FIN LEASE LTD. HAVE BEEN ACCEPTED BY THE TRIBUNAL AT RS.81/- PER SHARE WHICH IS ALSO FOUND I N THE CASE OF ASSESSEE AND TRANSACTIONS ARE OFF MARKET TRANSACTIONS AND WERE C ONDUCTED THROUGH THE SAME BROKER THROUGH WHOM THE ASSESSEE MADE PURCHASES AND SALES. THEREFORE, THE ASSESSEE HAS BEEN ABLE TO PROVE THAT THE SALE RATE OF SHARES AT RS.81/- IS GENUINE RATE OF SALE AND THIS SHARE RATE HAS NOT BEEN ARTIFICIAL LY RAISED BY STRUCTURED TRANSACTION. AS SUCH, BY FOLLOWING THE DECISION OF THE SAME ITAT , AGRA BENCH, I HAVE NO OPTION EXCEPT TO FOLLOW THE ORDER OF THE DIVISION O F ITAT, AGRA FOR THE PURPOSE OF DELETING THE ADDITION. THUS, ON THE BASIS OF THE DE CISION IN THE CASE OF KANTI PRASAD AGARWAL, HUF, THE FACTS CONSIDERED IN THE CASE OF B ALBIR CHAND MAINI (SUPRA) ARE CLEARLY DISTINGUISHABLE. FURTHER, THE ITAT, AGRA BE NCH IN THE CASE OF RAM PRAKASH ITA NO. 49/AGRA/2013 12 GARG (SUPRA) CONSIDERING THE DECISION OF HONBLE AL LAHABAD HIGH COURT, DISMISSED THE DEPARTMENTAL APPEAL. FINDINGS IN PARA 5 OF THIS ORDER, ARE REPRODUCED AS UNDER : 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND TH E MATERIAL ON RECORD AND DO NOT FIND ANY JUSTIFICATIO N TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITIO N. THE AO, ON THE FACTS OF THE CASE FOUND THAT SIMILAR ISSUE HAVE BEE N CONSIDERED IN THE CASE OF HUF OF ASSESSEE AND OTHER FAMILY MEMBERS SH RI RAJESH KUMAR GARG AND SMT. SEEMA GARG WHO HAVE ALSO SHOWN LONG-TERM CAPITAL GAINS OF THE SIMILAR NATURE OF THE SAME BRO KER AND OF THE SAME SCRIP IN THE ASSESSMENT YEAR UNDER APPEAL, WHICH WE RE FOUND TO BE BOGUS BY THE AO AND ADDITIONS HAVE BEEN CONFIRMED B Y THE LD. CIT(A) AS WELL. HOWEVER, THE LD. COUNSEL FOR THE ASSESSEE FILED COPY OF THE TRIBUNAL ORDER IN THEIR CASES DATED 31.03.2009 IN W HICH THE ITAT, AGRA BENCH DELETED THE SIMILAR ADDITIONS AND NO REL IANCE WAS PLACED ON THE STATEMENT OF SHRI MUKESH GUPTA AND HIS WIFE. THE ORDER OF THE TRIBUNAL HAS BEEN CONFIRMED BY THE HONBLE ALLAHABA D HIGH COURT VIDE ORDER DATED 15.02.2011. IN THE AFORESAID DECIS ION, IT WAS FOUND THAT THOSE ASSESSEES HAD OBTAINED SHARES IN PREFERE NTIAL ALLOTMENT DIRECTLY FROM THE COMPANIES AND THE PURCHASES DECLA RED IN THE BALANCE SHEET OF EARLIER YEARS, WHICH WERE ACCEPTED BY THE DEPARTMENT. SHARES WERE SOLD TO THE REGISTERED STOC K BROKERS AND STOCK EXCHANGE. BROKERS HAVE CONFIRMED THAT MONEY W AS GIVEN THROUGH DRAFT. HONBLE ALLAHABAD HIGH COURT, THEREF ORE, ON CONSIDERATION OF THESE RELEVANT CONSIDERATIONS, CON FIRMED THE FINDINGS OF THE TRIBUNAL THAT THE SALES ARE NOT SHAM TRANSAC TIONS. ACCORDING TO THE AO, THE FACTS OF THESE CASES ARE IDENTICAL TO T HE CASE OF THE ASSESSEE, THEREFORE, WHEN IN THE IDENTICAL CASES OF THE FAMILY MEMBERS OF THE ASSESSEE, ADDITIONS HAVE BEEN DELETED BY THE TRIBUNAL AND THE ORDER OF THE TRIBUNAL HAVE BEEN CONFIRMED BY ALLAHA BAD HIGH COURT, THEREFORE, ON SUCH REASON ITSELF, THE DEPARTMENTAL APPEAL IS LIABLE TO BE DISMISSED. FURTHER, THE ASSESSEE HAS FILED PROPE R EVIDENCES BEFORE THE AUTHORITIES BELOW TO SHOW THAT SHARES OF M/S. B .T. TECHNET LTD. WERE ALLOTTED DIRECTLY BY THIS COMPANY @ 10/- PER S HARE AND CONSIDERATION WAS TRANSFERRED THROUGH BANKING CHANN EL. ALL THE ALLOTMENT LETTERS, DRAFTS, CERTIFICATES OF THE COMP ANY ARE FILED IN THE PAPER BOO;. THE PROFILE OF M/S. B.T. TECHNET IS ALS O FILED IN THE PAPER BOOK TO SHOW THAT IT WAS A GENUINE COMPANY. THE SAM E WERE SHOWN IN THE BOOKS OF EARLIER YEARS. THEREFORE, THE PURCHASE OF SHARES AND ITA NO. 49/AGRA/2013 13 SOURCE OF PURCHASE COULD NOT HAVE BEEN DISPUTED. SA ME SHARES WERE SOLD TO THE BROKER, M/S. CMS SECURITIES LTD. DELHI AND ALL THE CONTRACT NOTES, SALE CONSIDERATION THROUGH DRAFTS HAVE BEEN FILED IN THE PAPER BOOK TO SUPPORT THE CONTENTION OF THE ASSESSEE. THE SALE RATE OF RS.114/- PER SHARE IS ALSO SUPPORTED BY THE INFORMA TION RECEIVED FROM M.P. STOCK EXCHANGE. WHATEVER STATEMENTS OF CMS SEC URITIES LTD. THROUGH THEIR DIRECTORS WERE RECORDED WERE NEVER CO NFRONTED TO THE ASSESSEE. THEREFORE, THE SAME CANNOT BE READ IN EVI DENCE, WHICH IS ALSO SUBSTANTIATED BY THE DECISION OF HONBLE SUPRE ME COURT IN THE CASE OF KISHAN CHAND CHELARAM VS. CIT, 125 ITR 713. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES, IN THE LIG HT OF THE DECISION OF THE JURISDICTIONAL ALLAHABAD HIGH COURT IN THE GROU P CASES ABOVE, WE DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION. THE ASSESSEE ON TH E BASIS OF EVIDENCE AND MATERIAL ON RECORD HAS BEEN ABLE TO PROVE THAT HE HAS RECEIVED ENTIRE SALE CONSIDERATION OF SHARES THROUGH KNOWN S OURCES. THEREFORE, NO ADDITION U/S. 68 COULD BE MADE AGAINST THE ASSES SEE. AS A RESULT, THE DEPARTMENTAL APPEAL FAILS AND IS DISMISSED. 7.1 CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF ABOVE DECISIONS AND THE EVIDENCES ON RECORD, IT IS CLEARLY PROVED THAT THE ASSESSEE PURCHASED THE SHARES GENUINELY IN PREVIOUS ASSESSMENT YEAR, WHICH HAVE B EEN REPORTED TO THE REVENUE DEPARTMENT IN THE RETURN OF INCOME FILED FOR THE PR ECEDING ASSESSMENT YEAR 2000- 01 AND HAVE BEEN CONFIRMED BY THE COMPANY ALSO AND THE LD. CIT(A) ACCEPTED THE CLAIM OF THE ASSESSEE. THE SALE RATES OF THE SHARES , ON WHICH THE ASSESSEE SOLD THE SHARES HAVE BEEN CONFIRMED FROM THE ORDER IN THE CA SE OF KANTI PRASAD AGARWAL (SUPRA). THE ASSESSEE HAS FILED CONTRACT NOTE, PURC HASE BILL AND COPY OF DEMAND DRAFT TO SHOW THAT THE SALES OF THE SHARES HAVE BEE N GENUINELY CONDUCTED BY THE ASSESSEE THROUGH THE BANKING CHANNEL AND IT BEING A N OLD MATTER, IF BROKERS WERE ITA NO. 49/AGRA/2013 14 NOT AVAILABLE AT THE GIVEN ADDRESS, NOTHING ADVERSE COULD BE ATTRIBUTED AGAINST THE ASSESSEE. THUS, THE ASSESSEE HAS BEEN ABLE TO EXPLA IN THE SOURCE OF THE AMOUNT IN QUESTION AND HAS ALSO BEEN ABLE TO PROVE THAT THE A SSESSEE HAS RECEIVED ENTIRE CONSIDERATION THROUGH KNOWN SOURCES. THE AO DID NOT PROVE ON RECORD THAT THE ASSESSEE STILL CLAIMED TO HAVE HELD THE SHARES IN Q UESTION AFTER SALE OF SHARES. THEREFORE, NO ADDITION U/S. 68 OF THE IT ACT CAN BE MADE AGAINST THE ASSESSEE. IN THE RESULT, THE ORDERS OF THE AUTHORITIES BELOW CAN NOT BE SUSTAINED. I ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELET E THE ADDITION. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY