Mr. Vaibhav Chadha, New Delhi V. ITO, New Delhi

ITA 6324/DEL/2014

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4523 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-03-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 19-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 133(6); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO.6324/DEL/2014 ASSESSMENT YEAR: 2005-06 MR. VAIBHAV CHADHA, 24/12, OLD RAJENDER NAGAR, NEW DELHI. V. ITO, WARD-33(4), NEW DELHI. TAN/PAN: ADFPC 5737N (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI RAJIV SAXENA, ADVOCATE RESPONDENT BY: SHRI N.K. BANSAL, SR.D.R. DATE OF HEARING: 23 08 2018 DATE OF PRONOUNCEMENT: 29 10 2018 O R D E R PER AMIT SHUKLA, J.M.: THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 17.06.2014, PASSED BY THE CIT(APPEALS)-XXVIII, NEW DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.143(3)/254 FOR THE ASSESSMENT YEAR 2005-06. IN THE GROUND OF APPEAL, THE ASSESSEE HAS MAINLY CHALLENGED THE TREATMENT OF LONG-TERM CAPITAL GAIN ON ACCOUNT OF SHARES AS SHORT-TERM CAPITAL GAIN BY THE AUTHORITIES BELOW. 2. THE MAIN ISSUE RELATES TO PURCHASE OF 14,000 SHA RES OF SANGOTRI CONSTRUCTION LTD. (SCL), WHICH HAS BEEN ST ATED BY THE ASSESSEE TO HAVE BEEN PURCHASED ON 11.06.2003 T HROUGH THE BROKER BUBNA STOCK BROKING LTD. AND SOLD ON B ETWEEN I.T.A. NO.6324/DEL/2014 2 AUGUST, 2004 TILL JANUARY, 2005 FOR SUM OF RS.10,75 ,280/-. THIS IS THE SECOND ROUND OF APPEAL PASSED IN PURSUA NCE OF THE TRIBUNAL ORDER DATED 23.10.2009 IN ITA NO.1353/DEL/ 2009, WHEREIN THE ORDER OF THE LD. CIT(A) HAS BEEN SET AS IDE AND MATTER WAS RESTORED BACK TO THE FILE OF THE ASSESSI NG OFFICER FOR THE PURPOSE OF ADJUDICATING, AS TO WHETHER THE ASSESSEE HAD PURCHASED SHARES ON 11.06.2003 OR NOT. THE REVE NUES CASE WAS THAT THE PURCHASE OF THE SHARES SHOULD BE RECKONED FROM THE DATE WHEN IT WAS TRANSFERRED TO THE DEMAT ACCOUNT OF THE ASSESSEE ON 28.07.2004 AND HENCE THE SALE OF SHARES WAS TREATED AS SHORT-TERM CAPITAL GAIN AND THE EXEM PTION CLAIMED BY THE ASSESSEE U/S.54 WAS DENIED. THE RELE VANT DIRECTION OF THE TRIBUNAL HAS BEEN INCORPORATED BY THE ASSESSING OFFICER AS WELL AS BY THE LD. CIT(A) IN T HE IMPUGNED ORDER. THE ASSESSEE CLAIMED TO HAVE PURCHASED 70,00 0/- SHARES OF SCL THROUGH BROKER, M/S. BUBNA STOCK BROK ING SERVICES LTD. ON 11.06.2003 WHICH GOT TRANSFERRED T O DEMAT ACCOUNT OF THE ASSESSEE ON 28.07.2004. IN SUPPORT O F THE CLAIM THAT SHARES WERE PURCHASED ON 11.06.2003 THE ASSESSEE HAD PRODUCED; I) CONTRACT NOTE ISSUED BY THE BROKER DATED 11.06.2003; II) BILL DATED 13.06.2003 SHOWING DELIV ERY OF 14,000 SHARES OF HCL FOR RS.17,280/-; III) LEDGER A CCOUNT OF THE ASSESSEE IN THE ACCOUNTS OF THE BROKER FOR THE PERIOD 31 ST MARCH, 2004; IV) LEDGER ACCOUNT OF SALE UPTO 31 ST MARCH, 2005; AND V) THE CONTRACT ISSUED BY BUBNA STOCK PVT. LTD. FOR SALE OF SHARES AND OTHER RELATED DOCUMENTS. THE ASSESSING O FFICER IN THE FIRST ROUND OF PROCEEDING HAVE NOTED THAT IN TH E CONTRACT I.T.A. NO.6324/DEL/2014 3 NOTE OF THE BROKER THE TRADE TIME FOR PURCHASE OF S HARES WAS RECORDED AS 13:19:00 AND 13:19:19 DATED 11.06.2003. HOWEVER, AS PER THE INQUIRY FROM CALCUTTA STOCK EXC HANGE THE LAST TRADING OF THE SAID SHARES WERE 12:33:49. FROM THIS INFORMATION THE ASSESSING OFFICER HAS CONCLUDED THA T ASSESSEE COULD NOT PROVE THE PURCHASES. THE LD. CIT(A) IN TH E FIRST ROUND HAS ACCEPTED THE ASSESSEES CONTENTION THAT T HE PURCHASES WERE MADE ON 11.06.2003. HOWEVER, THE TRI BUNAL HAS REMANDED THE ISSUE BACK TO THE FILE OF THE ASSE SSING OFFICER STATING THAT THE VERY TRANSACTION OF PURCHA SE OF SHARE ON 11.06.2003 HAS BEEN DISPUTED BY THE ASSESSING OF FICER AND HELD THAT CLINCHING EVIDENCES ESTABLISHING THE PURCHASE OF SHARES ON 11.06.2007 IS NOT ON RECORD AND AO WAS DIRECTED TO DECIDE AFRESH. AGAIN, IN THE SET ASIDE PROCEEDIN GS, THE ASSESSEE FILED THE SAME SET OF DOCUMENTS FOR PROVIN G THE PURCHASES AND ASSESSING OFFICER HAS REFERRED TO THE VARIOUS INQUIRIES MADE DURING THE COURSE OF ORIGINAL PROCEE DINGS, HOWEVER DID NOT CARRY OUT ANY FRESH ENQUIRY. THE RE LEVANT OBSERVATION OF THE ASSESSING OFFICER READS AS UNDER : THERE CANNOT BE ANY DISPUTE WITH REGARD TO THIS FA CT, BUT THE QUESTION TO BE EXAMINED IN THIS CASE IS AS TO WHETH ER OR NOT THE BROKER HIMSELF HAD THOSE SHARES WITH HIM ON THE DAT E WHEN CONTRACT NOTE WAS ISSUED. VARIOUS ENQUIRIES WERE MA DE DURING THE COURSE OF ORIGINAL PROCEEDINGS, AND IT WAS CONCEDED BY CALCUTTA STOCK EXCHANGE THAT THERE WAS ABSOLUTELY NO PURCHAS E OF SHARE IN THE ACCOUNT OF M/S. BUBNA STOCK EXCHANGE BROKING SE RVICES LTD. BEFORE 22/10/2003, IT WAS ALSO CONFIRMED THAT ON 11 .06.2003 THE ALLEGED DATE OF PURCHASE OF SHARES OF M/S. SCL THER E WAS NO SUCH DEAL CARRIED OUT AT THE CALCUTTA STOCK EXCHANGE THR OUGH M/S. I.T.A. NO.6324/DEL/2014 4 BUBNA STOCK BROKING SERVICES LTD. BASING MY ORDER O N THE REASONS GIVEN IN THE ORIGINAL ORDER, I HEREBY HOLD THAT SHA RES WERE ACTUALLY PURCHASED ONLY WHEN THESE WERE TRANSFERRED TO THE D EMATS A/C. I.E. ON 28.07.2004 AND HENCE SHORT TERM CAPITAL GAI N AROSE TO THE ASSESSEE AND NOT LONG TERM CAPITAL GAIN. THE EXEMPT ION CLAIMED BY THE ASSESSEE U/S.54F IS ALSO HEREBY DENIED. 3. LD. CIT(A) TOO HAS CONFIRMED THE ACTION OF THE A SSESSING OFFICER HOLDING THAT THERE IS A DIFFERENCE IN THE T IMING OF THE TRADE FOR PURCHASE OF SHARES ON 11 TH JUNE, 2003 WHICH WAS EVIDENT FROM THE INFORMATION RECEIVED FROM CALCUTTA STOCK EXCHANGE WHICH SHOWED THAT THE TIME OF FINAL TRANSA CTION WAS 12:33:49 AND ALL THE TRANSACTION TOOK PLACE BETWEEN THE TIME 12:08:56 TO 12:33:49. THUS, WHEN THE LAST TRANSACTI ON HAD TAKEN PLACE AT 12:33:49, THEN TRADE TIMING NOTED IN THE BROKERS NOTE AT 13:19 DOES NOT INDICATE THAT ASSESS EE HAD ACTUALLY PURCHASED ANY SHARES BY THE BROKER ON THAT DATE AND NO EXPLANATION HAS BEEN FILED BY THE ASSESSEE IN TH IS REGARD. 4. BEFORE US, LD. COUNSEL FOR THE ASSESSEE, MR. RA JIV SAXENA HAS GIVEN FOLLOWING CHRONOLOGY OF EVENTS OF ENTIRE EVIDENCES AND INQUIRY CONDUCTED IN THE CASE OF THE ASSESSEE: - 11-06-2003 CONTRACT NOTE ISSUED BY BUBNA STOCK BROK ING SERVICES LTD. FOR PURCHASE OF SHARES OF SANGOTRI COMPANY. 13-06-2003 BILL SHOWING DELIVERY OF 14,000 SHARES O F SANGOTRI CONSTRUCTION FOR RS 70,280/- LEDGER ACCOUNT OF THE ASSESSEE IN THE ACCOUNTS OF BUBNA STOCK BROKING SERVICES FOR THE PERIOD 20 MARCH 2003 TO 31 MARCH 2004 SHOWING PURCHASE OF SHARES FOR RS 70,280 /- LEDGER ACCOUNT FOR THE SUBSEQUENT PERIOD UPTO 31ST MARCH 2005 SHOWING SALE OF SHARES IN BUBNA STOCK BROKING SERVICES LTD. I.T.A. NO.6324/DEL/2014 5 23-08-2004 30-11-2004 31-01-2005 CONTRACT NOTES ISSUED BY BUBNA STOCK SERVICES LTD. FOR SALE OF SHARES ON VARIOUS DATES. 24-09-2007 LETTER FROM SHIVMANGAL SECURITIES PVT. LTD. DP OF B UBNA STOCK BROKING SERVICES LTD. TO ACIT KOLKATA IN RESP ONSE TO NOTICE U/S 131 27-09-2007 LETTER FROM BUBNA TO ACIT KOLKATA SUBMIT TING LEDGER ACCOUNT, DEMAT STATEMENT OF SHARES TRANSACTIONS DON E WITH THE ASSESSEE CONFIRMING SALE AND PURCHASE. 30-11-2007 ANOTHER LETTER FROM BUBNA TO ACIT KOLKATA CONFIRMIN G SALE AND PURCHASE BY SUBMITTING LEDGER COPIES. 07-02-2006 LETTER FROM ASST. ROC WEST BENGAL TO ITO WARD 31(3) NEW DELHI U/S 133(6) IN THE CASE OF ASSESSEE. 03-04-2007 LETTER FROM SAM GLOBAL SECURITIES LTD. T O ITO WARD 31(3) NEW DELHI U/S 133(6) IN THE CASE OF ASSESSEE. 09-11-2010 SUBMISSIONS BEFORE AO SUBMITTING CONTRAC T NOTE, BILL, STATEMENT OF ACCOUNT AND 2 LETTERS FROM BUBNA STOCK BROKING SERVICES LTD. IN CONNECTION WITH CONFIRMATI ON OF PURCHASE AND SALE OF SHARES THROUGH THEM AND SEEKIN G OPPORTUNITY TO CROSS EXAMINING THE WITNESSES. -11-2010 ANOTHER SUBMISSIONS TO ASSESSING OFFICER 09-04 2014 SUBMISSIONS BEFORE CIT(A) 25-04-2014 LETTER TO BUBNA STOCK BROKING SERVICES L TD. FROM THE AR OF THE ASSESSEE. 03-06-2014 ANOTHER SUBMISSIONS BEFORE AO REQUESTING TO SUMMON BROKER WHO HAS ALREADY CONFIRMED AGAIN AND AGAIN. 13-04-2007 LETTER FROM MAHESWARI DATA MATICS PVT. L TD. TO ASSESSING OFFICER. 19-12-2207 LETTER FROM CALCUTTA STOCK EXCHANGE ASSO CIATION LTD. TO ASSESSING OFFICER. 5. FROM THE PERUSAL OF THE ENTIRE EVIDENCES, LD. CO UNSEL SUBMITTED THAT, IT CAN BE SEEN THAT ASSESSEE HAS GI VEN ALL THE RELEVANT DOCUMENTS IN SUPPORT OF PURCHASES THAT IT WAS MADE ON 11.06.2003 WHICH IS EVIDENCED BY THE BILLS, BROK ERS NOTE, COPY OF LEDGER ACCOUNT, ETC. THE LETTER FROM STOCK EXCHANGE DOES NOT GOES TO CONCLUSIVELY PROVE THAT THE BROKER HAD NOT I.T.A. NO.6324/DEL/2014 6 PURCHASED THE STOCK ON 11.03.2006 FROM STOCK EXCHAN GE. THUS, TREATING THE DATE OF PURCHASE FROM THE DATE I T WAS TRANSFERRED TO THE DEMAT ACCOUNT SO AS TO DENY THE LONG- TERM CAPITAL GAIN IS NOT CORRECT. 6. ON THE OTHER HAND, LEARNED DR HAS STRONGLY RE LIED UPON THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT , ONCE THE ASSESSEE HAS NOT BEEN ABLE TO PROVE BY WAY OF ANY E VIDENCE AND THERE IS A DISCREPANCY IN THE TIMING OF THE TRA DE AS NOTED IN THE BROKERS NOTE AND THE INFORMATION RECEIVED F ROM CALCUTTA STOCK EXCHANGE, THEN IT CAN BE SAFELY PRES UMED THAT NO SUCH TRANSACTION HAS BEEN TAKEN PLACE ON 11.06.2 003. THUS, ORDER OF THE ASSESSING OFFICER AND LD. CIT(A) NEEDS TO BE CONFIRMED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE RELEVANT FACTS AND MATERIAL ON RECORD. HERE, TH E ONLY ISSUE IS, WHETHER THE PURCHASES AND SALE OF SHARES OF SAN GOTRI CONSTRUCTION LTD. IS TO BE TREATED AS SHORT TERM CA PITAL GAIN OR LONG-TERM CAPITAL GAIN. THE ASSESSEES CLAIM IS THAT IT WAS PURCHASED ON 11.06.2003, WHEREAS THE REVENUES CASE IS THAT THE DATE OF PURCHASE SHOULD BE RECKONED FROM THE DA TE WHEN THE SHARES WERE TRANSFERRED TO DEMAT ACCOUNT. FROM THE PERUSAL OF THE CONTRACT NOTE ISSUED BY THE BROKER, IT IS SEEN THAT ASSESSEE HAD PURCHASED 14,000 SHARES IN TWO LO T (10,000 + 4,000) FOR SUM OF RS.70,280/-. THE SETTLEMENT END ING DATE HAS BEEN GIVEN ON 11.06.2003 AND TRADE TIME FOR PUR CHASE HAS BEEN SHOWN AT 13:19:08 OR AT 13:19:19. FURTHER, IN HIS I.T.A. NO.6324/DEL/2014 7 BILL DATED 13.06.2003 THE SAID SHARES HAVE BEEN DEL IVERED TO THE ASSESSEE, THE COPY OF WHICH IS APPEARING AT PAG E 2 OF THE PAPER BOOK. FROM THE COPY OF THE LEDGER ACCOUNT OF THE ASSESSEE IN THE BROKERS BOOK, IT IS SEEN THAT THE SHARES HAVE BEEN DELIVERED ON 13.06.2003 AND AMOUNT HAS BEEN RE CEIVED BY HIM ON VARIOUS DATES STARTING FROM 24.06.2003 TO 31.03.2004. THEREAFTER, THE ASSESSEE HAD SOLD THE S HARES FROM 23.08.2004 TO 31.01.2005 FOR A SUM OF RS. 10,75,280 /-, WHICH TRANSACTION IS NOT DISPUTED. FROM THE RECORDS , IT IS SEEN THAT ASSESSING OFFICER HAD WRITTEN A LETTER TO CALC UTTA STOCK EXCHANGE, WHEREIN THEY HAVE GIVEN THE TRADE DETAILS OF SHARES OF SANGOTRI CONSTRUCTION LTD. CARRIED OUT ON 11.06. 2003, WHICH SHOWED THAT THE TRADE TIMING STARTED FROM 12: 08:56 TO 12:33:49. BASED ON THIS INFORMATION, IT HAS BEEN CO NCLUDED BY THE ASSESSING OFFICER AND BY THE LD. CIT(A) THAT THE BROKER OF THE ASSESSEE HAD NOT PURCHASED THE SHARES ON 11. 06.2003. AFTER CONSIDERING ALL THE MATERIAL FACTS DISCUSSED IN THE IMPUGNED ORDER, WE FIND THAT SOLE RELIANCE PLACED B Y THE ASSESSING OFFICER AND LD. CIT(A) TO DRAW ADVERSE IN FERENCE IS WITH REGARD TO THE TRADE DATE AND TIME OF PURCHASE OF SHARES SANGOTRI CONSTRUCTION LTD. FROM THE KOLKATA STOCK E XCHANGE. THE BROKER HAS SHOWN THE TRADE TIMING AT 13:19 HOUR S. SIMPLY BASED ON THIS INFORMATION OF KOLKATA STOCK E XCHANGE, IT CANNOT BE HELD THAT; FIRSTLY , THE BROKER OF THE ASSESSEE HAD NOT TRADE IN THE PURCHASE OF SHARES OR THE SHARES W ERE NOT AVAILABLE WITH THE BROKER, WHEN ON THE OTHER HAND, THE BROKER HAS ADDUCED AMPLE EVIDENCE DIRECTLY BEFORE THE DEPA RTMENT I.T.A. NO.6324/DEL/2014 8 TO PROVE NOT ONLY THE PURCHASE BUT ALSO THE DELIVER Y OF THE SHARES TO THE ASSESSEE; SECONDLY , THE BROKER BUBNA STOCK BROKING LTD. WAS NEITHER EXAMINED OR INQUIRED BY T HE DEPARTMENT DESPITE MATTER WAS RESTORED BACK TO THE FILE OF THE AO, ESPECIALLY WHEN, IN RESPONSE TO ONE LETTER WRIT TEN BY ACIT, KOLKATA, THE BROKER HAS FURNISHED THE COPY OF LEDGE R ACCOUNT, DEMAT STATEMENT AND ALSO CONFIRMATION REGARDING PUR CHASES AND SALE. THIS INFORMATION RECEIVED BY THE DEPARTME NT FROM THE SAID BROKER HAVE NEITHER BEEN REBUTTED NOR ANY CROSS- EXAMINING HAS BEEN DONE FROM THE BROKER TO ASCERTAI N THE FACT ABOUT THE CORRECT TIMING OF TRADE, BECAUSE IT IS THE BROKER ALONE WHO COULD HAVE EXPLAINED THESE FACTS. AFTER A LAPSE OF SUBSTANTIAL TIME, IN THE YEAR 2014, ASSESSEE HAD WR ITTEN A LETTER TO THE BROKER TO CLARIFY THIS POINT BUT NO R EPLY HAD BEEN RECEIVED. IF THE BROKER HAD CLAIMED THAT HE HAS MAD E THE PURCHASES OF THE SCL SHARES ON 11.06.2003 AND HAD A LSO ISSUED CONTRACT NOTE AND BILL AND WHEN AO HAD SOUGH T ALL THE INFORMATION FROM HIM, THEN THE TIME OF PURCHASE ALS O SHOULD HAVE BEEN SOUGHT WHO ALONE COULD VERIFIED THIS FACT . IN SO FAR AS ASSESSEE IS CONCERNED, HE HAS DULY ADDUCED ALL T HE EVIDENCES WHICH WAS AVAILABLE FROM THE BROKER TO PR OVE THE PURCHASES. NOW TO CAST THE ONUS UPON THE ASSESSEE T O PROVE THE TIMING OF PURCHASE UNDER THESE FACTS AND CIRCUM STANCES MAY NOT BE APPROPRIATE WHEN ASSESSEE HAS OTHERWISE PROVED THE PURCHASE AND DELIVERY OF SHARES ON 11.06.2003 A ND 13.06.2003 RESPECTIVELY. SIMPLY BECAUSE, THERE IS A DIFFERENCE IN TRADE TIME, THEREFORE, THE ENTIRE PURCHASES IS T O DISBELIEVED I.T.A. NO.6324/DEL/2014 9 TO HAVE BEEN MADE ON 11.06.2003 WOULD NOT BE APPROP RIATE AND AT THE SAME TIME TO RECKON THE PURCHASE DATE ON LY FROM THE DATE OF TRANSFER OF SHARES TO DEMAT ACCOUNT SO AS TO DENY THE CLAIM OF LONG-TERM CAPITAL GAIN MAY NOT BE CORR ECT. IN OUR OPINION, WHEN THE MATTER WAS REMANDED TO THE AO TO VERIFY THIS FACT THEN AO SHOULD HAVE ENQUIRED FROM THE BROKER AND SIMPLY BECAUSE THERE WAS A DISCREPANCY IN THE T RADE TIMING AS NOTED BY THE BROKER AND AS INFORMED BY TH E STOCK EXCHANGE ABOUT THE PURCHASE TRANSACTION, ADVERSE IN FERENCE CANNOT BE DRAWN UPON THE ASSESSEE, WHEN THERE IS NO OTHER MATERIAL OR INFORMATION THAT EITHER LIMB OF THE TRA NSACTION, THAT IS, PURCHASE OR SALE ARE NOT GENUINE OR IS A S HAM TRANSACTION. HERE IT IS NOT A CASE OF CLAIM OF BOGU S LONG-TERM CAPITAL GAIN THROUGH SOME ACCOMMODATION ENTRY, ALBEIT ISSUE IS, WHETHER THE TRANSACTION OF SHARES HAS RESULTED INTO A SHORT-TERM GAIN OR LONG-TERM CAPITAL GAIN. EVEN IF ONE GOES BY THEORY OF PREPONDERANCE OF PROBABILITY ON THE BAS IS OF MATERIAL ON RECORD THEN THE PROBABLE FACTORS IN FAV OUR OF THE ASSESSEE ARE: - I) BROKERS CONTRACT NOTE CONFIRMING THE PURCHASE OF THE SHARES ON 11.06.2003. II) BILL FOR PURCHASE OF SHARES FOR THE SAME DATE GIV EN BY THE BROKER. III) COPY OF LEDGER ACCOUNT OF THE ASSESSEE IN THE BOOK S OF THE BROKER IV) CONFIRMATION BY THE COMPANY M/S. SANGOTRI CONSTRUCTIO N LTD. THAT SHARES WERE TRANSFERRED IN THE NAMES OF THE ASSESSEE. I.T.A. NO.6324/DEL/2014 10 V) THE BROKER MIGHT HAVE PURCHASED THE SHARES FROM THE STOCK EXCHANGE AND THE INFORMATION GIVEN BY THE KOLKATA STOCK EXCHANGE MAY NOT BE COMPLETE OR SHARE MUST HAVE BEEN PROCURED BY THE BROKER FROM THE OTHER BUYERS. 8. TO CONTROVERT THESE FACTORS AND MATERIAL ON RECO RD AO HAS NOT MADE ANY SPECIFIC ENQUIRY FROM THE BROKER T O ASCERTAIN THE CORRECT TIME AND DATE OF PURCHASE AFT ER THE INFORMATION FROM THE STOCK EXCHANGE EVEN AFTER SECO ND ROUND OF PROCEEDINGS. THE ASSESSEE CAN PROVE FROM THE DOC UMENTS WHICH ARE MADE AVAILABLE FROM THE BROKER AND IF THE RE IS ANY DISCREPANCY AT THE END OF THE BROKER REGARDING TIMI NG OF PURCHASE THEN BROKER ALONE COULD HAVE CLARIFIED. TH US, IN VIEW OF MATERIAL ON RECORD, WE HOLD THAT THE PURCHA SES MADE BY THE ASSESSEE ON 11.06.2003 CANNOT BE DISBELIEVED AND ACCORDINGLY THE TRANSACTION OF SHARE IS TREATED AS LONG TERM CAPITAL GAIN. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH OCTOBER, 2018. SD/- SD/- [PRASHANT MAHARISHI] [AMIT SHUKLA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH OCTOBER, 2018 PKK: