Smt. Manju Bansal, Lucknow V. ITO, Lucknow

ITA 70/LKW/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87795 (ITAT-LUCKNOW)
• Duration Of Justice: 4 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 05-02-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 07-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PINKI MAHAWAR
• Keywords: Share purchase agreement; Principle of natural justice; Cost of acquisition; Accommodation entries; Assessment record; Reason to believe; Reassessment proceedings
• Section: 147; 68; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.70/LKW/2011 ASSESSMENT YEAR:2001 - 02 INCOME TAX OFFICER - 1(1), LUCKNOW. VS SMT. MANJU BANSAL, B - 1/78, SECTOR - B, BASANT VIHAR, ALIGANJ, LUCKNOW. PAN:ACMPB7393M (RESPONDENT) (APPELLANT) SHRI P. K. KAPOOR, C.A. APPELLANT BY SMT. PINKI MAHAWAR, D.R. RESPONDENT BY 05/02/2015 DATE OF HEARING 12 /03/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II, LUCKNOW DATED 27/08/2010 FOR THE ASSESSMENT YEAR 2001 - 2002. 2. GROUND NOS. 1,2 & 3 ARE INTER - CONNECTED REGARDING VALIDITY OF REOPENING, WHICH ARE AS UNDER: 1. BECAUSE THE PROCEEDINGS UNDER SECTION 147 AS INITIATED VIDE NOTICE DATED 06.12.2005 UNDER SECTION 148 HAVE NEITHER BEEN VALIDLY INITIATED NOR CONCLUDED IN ACCORDANCE WITH THE PROVISIONS OF LAW AND AS SUCH THE ASSESSMENT ORDER DATED 28.12.2006 PASSED UNDER SECTION 147/143(3) IS VOID AB INITIO. 2. BECAUSE THE 'REASONS RECORDED' BY THE ASSESSING OFFICER ON 30.11.2005 ARE WHOLLY DEFICIENT AND DO NOT MEET THE REQUIREMENT OF LAW AS NEITHER THERE EXISTED ANY RELEVANT MATERIAL O R INFORMATION SO AS TO ENTERTAIN 'REASON TO BELIEVE' NOR THERE WAS ANY LIVE LINK NEXUS BETWEEN SUCH 2 MATERIAL AND INFORMATION ON RECORD THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND THEREFORE LD. 'CIT(A)' SHOULD HAVE HELD THAT THE ENTIRE PROC EEDINGS BASED ON SUCH 'REASONS RECORDED' ARE BAD IN LAW. 3. BECAUSE THE ENQUIRY REPORT FROM INVESTIGATION WING CANNOT BE SAID TO CONSTITUTE RELEVANT MATERIAL OR INFORMATION FOR THE PURPOSE OF INITIATION OF PROCEEDINGS UNDER SECTION 147 AND AS SUCH THE ENT IRE PROCEEDINGS BASED ON SUCH INFORMATION OR ENQUIRY REPORT ARE BAD IN LAW AND THEREFORE THE LD. 'CIT(A)' COULD NOT HAVE SUSTAINED THE PROCEEDINGS UNDER SECTION 147 ON THE BASIS OF SUCH REPORT OR INFORMATION. 3. LEARNED A.R. OF THE ASSESSEE REITERATED TH E SAME CONTENTIONS WHICH WERE RAISED BEFORE CIT(A) WHEREAS LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDER OF LEARNED CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THIS ISSUE WAS DECIDED BY LEARNED CIT(A) AS PER PARA 5 AND 5.1 OF HIS ORDER, WHICH ARE REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 5. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS MADE BY THE ASSESSEE DURING THE COURSE OF THE APPEAL. 5.1 THE ASSESSING OFFICER HAD RIGHTLY INITIATED THE PROCEEDINGS UNDER SECTION 147 BY ISSUING THE NOTICE UNDER SECTION 148 OF THE INCOME - TAX ACT, 1961 AND IN CASE THE ASSESSEE WAS NOT SATISFIED, SHE HAD THE OPTION OF FILING A WRIT PETITION WHICH SHE DID BEFORE THE HON'BLE ALLAHABAD HIGH COURT WHO DID NOT GRANT ANY RELIE F TO THE ASSESSEE. AS THE ASSESSING OFFICER HAD VALID REASONS TO INITIATE THE REASSESSMENT PROCEEDINGS, AND THE NOTICE UNDER SECTION 148 OF THE INCOME - TAX ACT, 1961 HAS NOT BEEN QUASHED NOR THE PROCEEDINGS WERE STAYED BY THE HON'BLE ALLAHABAD HIGH COURT, T HEREFORE, GROUND NO. 1 IS REJECTED. 4.1 FROM THE ABOVE PARAS FROM THE ORDER OF CIT(A), IT IS SEEN THAT THE ASSESSEE HAS FILED A WRIT PETITION BEFORE HON'BLE ALLAHABAD HIGH COURT 3 CHALLENGING THE VALIDITY OF REOPENING PROCEEDINGS AND NEITHER ANY RELIEF WAS GRANTED NOR ANY STAY WAS GRANTED AGAINST THE REOPENING PROCEEDINGS. EVEN BEFORE US, IT COULD NOT BE PRODUCED BY LEARNED A.R. OF THE ASSESSEE THAT ANY RELIEF WAS ALLOWED BY HONBLE HIGH COURT . HENCE, THE ORDERS OF THE AUTHORITIES BELOW ON THE VALIDITY OF REOPENING PROCEEDINGS HAVE MERGED WITH THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT AND THEREFORE, WE CANNOT INTERFERE IN THE ORDERS OF THE AUTHORITIES BELOW ON THIS ISSUE. MOREOVER, AS PER THE REASON TO BELIEVE FOR REOPENING, AVAILABLE ON PAGES 38 TO 39 OF THE PAPER BOOK, IT IS NOTED BY THE ASSESSING OFFICER THAT IN THE INFORMATION FORWARDED BY ADDL. DIT (INV.), MEERUT TO THE INVESTIGATION WING, LUCKNOW, IT WAS STATED THAT M/S H. B. RELAN & CO., KAROL BAGH, DELHI WAS PROVIDING ACCOMMODATION ENTRIES OF SH ORT TERM / LONG TERM CAPITAL GAIN IN LIEU OF CASH RECEIVED FROM INTENDING BENEFICIARIES AND SMT. MANJU BANSAL I.E. THE ASSESSEE, IS ONE OF BENEFICIARY. IT IS FURTHER NOTED BY THE ASSESSING OFFICER THAT TO VERIFY THE GENUINENESS OF THE TRANSACTIONS, LETTER S WERE ISSUED BY THE ADIT (INV.), LUCKNOW TO DIFFERENT STOCK EXCHANGES AND IT WAS FOUND THAT THE DATE OF PURCHASE, DATE OF SALE AND PRICE OF SCRIPTS WERE NOT CORROBORATED WITH THE INFORMATION PROVIDED BY THE ASSESSEE. FROM THESE REASONS, IT IS APPARENT TH AT THE ASSESSING OFFICER HAS NOT MERELY ACTED UPON THE INFORMATION PROVIDED BY ADDL. DIT (INV.), MEERUT TO THE INVESTIGATION WING, LUCKNOW BUT FURTHER ENQUIRIES WERE MADE AND IT WAS NOTED BY ASSESSING OFFICER THAT THE ASSESSEE HAS MADE PURCHASES OF THESE S HARES DURING 03/09/99 TO 04/10/99 AT A COST OF RS.3,37,445/ - AND THESE SHARES WERE SOLD DURING 11/09/2000 TO 30/11/2000 AT A HEFTY SALE CONSIDERATION OF RS.48,41,763/ - WITHIN A PERIOD OF 13 MONTHS FROM THE DATE OF PURCHASE. ENQUIRIES WERE MADE FROM VARIOU S STOCK EXCHANGES AND ALSO FROM THE BROKERS BEFORE INITIATING THE ASSESSMENT PROCEEDINGS. CONSIDERING THESE FACTS, THE REOPENING PROCEEDINGS ARE VALIDLY INITIATED. HENCE, WE DECLINE TO INTERFERE IN THE ORDER OF CIT(A) ON THIS ISSUE . ACCORDINGLY, THESE G ROUNDS ARE REJECTED. 4 5. GROUND NOS. 4 TO 12 ARE ON MERIT OF THE ADDITIONS MADE BY THE ASSESSING OFFICER OF RS.48,41,763/ - REALIZED ON SALE OF SHARES. THESE GROUNDS ARE AS UNDER: 4. BECAUSE THE APPELLANT HAD DULY DISCLOSED THE FULL PARTICULARS OF INCOME, INCLUDING INCOME UNDER THE HEAD 'LONG TERM CAPITAL GAIN', BY DISCLOSING NOT ONLY THE DATE AND COST OF ACQUISITION OF SHARES BUT ALSO RELEVANT MATERIAL FOR SALE OF SHARES ALONG WITH THE RETURN FILED ON 31.07.2001, AND THEREFORE, ON PERUSAL OF SUCH R ELEVANT FACTS GIVEN IN THE RETURN OF INCOME, IT CANNOT BE SAID THAT THE ASSESSING OFFICER COULD HAVE COME TO A CONCLUSION THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, AND THEREFORE, THE ENTIRE PROCEEDINGS UNDER SECTION 147, CONFIRMED BY THE LD . 'CIT(A)' ARE BAD IN LAW. WHOLLY WITHOUT PREJUDICE TO THE AFORESAID 5. BECAUSE THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE CONSIDERATION AGGREGATING RS.48,41,763.50 REALIZED ON SALE OF SHARES AS PER PARTICULARS GIVEN BELOW: - AMOUNT(RS) ( A ) DILEEP KUMAR BHANDRI REGISTERED WITH M.P. SALE CONSIDERATION 14,76,000.00 STOCK EXCHANGE LESS:(I)BROKERAGE 7380.00 (II)SERVICE TAX 369.00 7,749.00 SUB TOTAL 14,68,251.00 ( B ) M/S RENU PODDAR REGISTERED WITH SALE CONSIDERATION 4,65,000.00 KOLKATA STOCK EXCHANGE LESS:BROKERAGE & 1000.00 1,000.00 SERVICE TAX SUB TOTAL 4,64,000.00 ( C ) M/S RENU PODDAR REGISTERED WITH SALE CONSIDERATION 7,50,000.00 KOLKATA STOCK EXCHAN GE LESS:BROKERAGE & 1500.00 1,500.00 SERVICE TAX SUB TOTAL 7 ,48, 5 00.00 ( D ) M/S H.B. RELAN & CO. REGISTERED WITH DELHI SALE CONSIDERATION 21,66,000.00 STOCK EXCHANGE LESS:(I)BROKERAGE 4750.00 (II)SERVICE TAX 237.00 4,887.00 SUB TOTAL 21,61,012.00 GRAND TOTAL (A+B+C+D) 48,41,763.00 5 REPRESENT UNDISCLOSED INCOME OF THE APPELLANT AND IN SUBJECTING THE SAME TO THE ASSESSMENT UNDER THE HEAD 'INCOME FROM OTHER SOURCES'. 6. BECAUSE THE APPELLANT HAD ACQUIRED THE SHARES IN THE FINANCIAL YEAR 1999 - 2000, RELEVANT TO ASSESSMENT YEAR 2000 - 01, PARTICULARS OF WHICH WERE DULY REFLECTED NOT ONLY IN THE BANK STATEMENT, BUT ALSO IN THE RETURN OF INCOME, AND WITHOUT DISPUTING THE DATE AND COST OF ACQUISITION OF S HARES, THE LD. CIT(A) AS WELL AS ASSESSING OFFICER, COULD NOT HAVE DISPUTED THE SALE OF SUCH SHARES DURING THE RELEVANT ASSESSMENT YEAR (2001 - 02) AND AS SUCH TAXING THE ENTIRE SALE PROCEEDS UNDER THE HEAD 'INCOME FROM OTHER SOURCES' IN THE IMPUGNED ASSESSM ENT YEAR 2001 - 02 IS WHOLLY ERRONEOUS NOT ONLY IN LAW BUT ALSO ON FACTS. 7. BECAUSE THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE APPELLANT'S VERSION OF SALE OF SHARES FOR CONSIDERATION OF RS.48,41,7637 - (NET) PARTICULARLY THAT: - ( A ) THE APPELLANT HAS DULY FURNISHED APPLICATION FORM FOR PURCHASE OF SHARES ALONG - WITH PROOF OF PAYMENT MADE FOR PURCHASE OF SUCH SHARES; ( B ) THE CONTRACT NOTES ISSUED BY RESPECTIVE BROKERS WHO WERE REGISTERED MEMBERS OF STOCK EXCHANGE; ( C ) SALES BILLS ISSUED BY THE BROKERS FOR SALE OF SHARES; ( D ) ACCOUNT STATEMENT OF THE APPELLANT GIVEN BY THE R ESPECTIVE STOCK BROKERS IN RESPECT OF SALE OF SHARES; ( E ) SHARE CERTIFICATES AND ALLOTMENT LETTER GIVING DISTINCTIVE NUMBERS OF SHARES AS ISSUED BY THE CONCERNED COMPANY; ( F ) REPORT OF LI STING OF SHARES IN RESPECTIVE STOCK EXCHANGES. AND THEREFORE, THE CONTRARY VIEW TAKEN BY THE CIT(A) FOR SUSTAINING THE ADDITIONS WITHOUT REBUTTING THE ABOVE DOCUMENTS AND INFORMATION IS WHOLLY VITIATED. 8. BECAUSE THE LD. CIT(A) AS WELL AS ASSESSING OFFICER HAVE DISBELIEVED THE APPELLANT'S VERSION OF NATURE AND SOURCE OF CREDITS, WHICH WERE BY WAY OF SALE OF SHARES ACQUIRED IN THE EARLIER YEAR, SOLELY ON THE BASIS OF EX - PARTE ENQUIRIES MADE BY THE INVESTIGAT ION WING AS WELL AS BY THE ASSESSING OFFICER WITHOUT GIVING OPPORTUNITY TO THE 6 APPELLANT OF CROSS EXAMINING THE BROKERS VIS - A - VIS THE RECORDS AND EVIDENCES FURNISHED BY THE APPELLANT AND THEREFORE, ADDITION MADE AND SUSTAINED BY THE AUTHORITIES BELOW IS IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE IS NOT SUSTAINABLE EITHER IN LAW OR ON FACTS. 9. BECAUSE THE VIEW TAKEN BY THE CIT(A) FOR SUSTAINING THE ADDITION OF RS.48,47,763/ - IS BASED ON IRRELEVANT CONSIDERATION, SURMISES AND PRESUMPTIONS WITHOUT, REBUTT ING THE EVIDENCES AND DOCUMENTS PLACED BY THE APPELLANT ON RECORD AND WITHOUT CONFRONTING THE DOCUMENTS ALLEGED TO HAVE BEEN SUPPLIED BY THIRD PARTIES AND THEREFORE, SUCH AN ADDITION DESERVES TO BE DELETED. 10. BECAUSE THE APPELLANT HAD ALREADY OFFERED FO R TAXATION, THE RESULTANT CAPITAL GAIN OF RS.9,24,319 / - AND ANY INCOME OVER AND ABOVE THE SAME COULD NOT HAVE BEEN SUBJECTED TO ASSESSMENT IN HER HANDS. 11. BECAUSE THE CASE LAWS AS HAVE BEEN RELIED UPON BY THE LD. CIT(A) CANNOT BE SAID TO BE APPLICABLE O N THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS SUCH THE FINDINGS OF THE CIT(A) BASED ON SUCH CASE LAWS ARE NEITHER SUSTAINABLE IN LAW NOR ON FACTS. 12. BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY TO THE FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 6. WITH REGARD TO THE MERIT OF THE ADDITION, WRITTEN SUBMISSIONS WERE FILED BY THE ASSESSEE AS PER WRITTEN SUBMISSIONS FURNISHED ON 05/02/2015 AND THE SAME ARE REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - AS PER THE INFORMATION MADE AVAILABLE BY THE BENCH SECRETARY IN TERMS OF THE ORDER SHEET ENTRY DATED 15.12.2014, THE ABOVE MENTIONED APPEAL IS RE - FIXED FOR HEARING ON 05.02.2015, AS 'PART HEARD', FOR THE FOLLOWING CLARIFICATIONS 'CERTAIN CLARIFICATIONS ARE REQUIRED, I. E. WHETHER THE SHARES ARE QUOTED. IF QUOTED, QUOTATION ON DATE OF PURCHASE & SALE. IF NOT QUOTED, BOOK VALUE ON DATE OF PURCHASE AND SALE. FIX AS PART HEARD ON 16.01.2015' IN RESPECTFUL COMPLIANCE WITH THE SAID ORDER SHEET E NTRY , THE APPELLANT BEGS TO SUBMIT AS FOLLOWS. 7 2. AS PER THE INFORMATION AVAILABLE ON RECORD, THE APPELLANT HAD PURCHASED AND SOLD THE SHARES OF THREE COMPANIES AS PER DETAILS GIVEN BELOW: S. NO. NAME OF COMPANY SHARES NO, OF SHARES DATE OF PURCHASE COST PRICE DATE OF SALE SALE CONSIDERATION LONG TERM CAPITAL GAIN 1 PARNAMI HABITAT DEVELOPERS LTD. 19,000 03.06.99 1,12,195 11.09.00 21,61,012 20,48,817 2 (A)UNOMETAL LTD. 15,000 23.08.99 1,25,250 17.10.00 7.48,500 10,87,250 (B)UNOMETAL LTD. 10,000 18.10.00 4,64,000 3 B.T. TECHNET LTD. 10,000 04.10.99 1,00, 000 30.11.00 14,68,251 13,68,251 3,37,445 48,41,763 45,04,318 DEDUCT 45,04,319 RELIEF UNDER SECTION 54EC ON AC COUNT OF INVESTMENT IN NABARD (TO THE EXTENT OF INVESTMENT MADE IN THE CAP IT AL GAIN BONDS. 35,80,000 TOTAL CAPITAL GAIN 9,24,319 4. IT IS STATED THAT ALL THE THREE COMPANIES WHOSE SHARES WERE PURCHASED AND SOLD BY THE ASSESSEE WERE LISTED COMPANIES. COPIES OF COMPANY/LLP MASTER DATA REPORT OF THESE COMPANIES (AS DOWNLOADED FROM MCA WEBSITE) ARE ENCLOSED AND THE SAME HAVE BEEN MARKED AS ANNEXURE - I, II & III RESPECTIVELY. 5. AS FAR AS QUOTATIONS FOR THE DATE OF PURCHASE AND SALE ARE CONCERNED, IT IS STATED THAT THE SHARES OF ABOVE MENTIONED COMPANIES WERE QUOTED ON THE RELEVANT POINT OF TIME, AS PER THE INFORMATION GIVEN BELOW: PARNAMI HABITAT DEVELOPERS LTD. 6. THE ASSESSEE HAD PURCHASED 19,000 SHARES OF THIS COMPANY ON 03.06.1999. THE SHARES WERE PURCHASED THOUGH M/S. S.K. FINANCIAL SERVICES, A BROKER DULY REGISTERED WITH SEBI. VARIOUS EVIDENCES IN SUPPORT OF TRANSACTIONS OF PURCHASE AND SALE OF SHARES HAVE BEEN PLACED AT PAGES 69 TO 77 OF THE PAPER BOOK FILED BEFORE 8 THE HON'BLE BENCH ON 30.11.2011. THE ASSESSEE HAD SOLD THESE SHARES ON 05.09.2000 @ RS.114/ - PER SHARE AS PER CONTRACT NOTE DATED 05.09.2000 ISSUED BY H.B. RELAN & CO., A BROKER DULY REGISTERED WITH SEBI. THE COPY OF CONTRACT NOTE FOR SALE OF SHARES IS APPEARING ON PAGE 72 OF PAPER BOOK. THE LIST OF OFFICIAL QUOTATION OF M.P. STOCK EXCHANGE AS OF 05.09.2010 IS PLACED AT PAGE 77, WHEREIN THE OFFICIAL QUOTATION IS SHOWN AT RS. 114/ - PER SHARE. 7. AS FAR AS OFFICIAL QUOTATION PERTAINING TO DATE OF PURCHASE IS CONCERNED, THE SAME IS NOT READILY AVAILABLE SINCE THE TRANSACTIONS PERTAIN TO MORE THAN 15 YEARS OLD, AND, THEREFORE, IT MAY NOT BE POSSIBLE AT THIS STAGE TO OBTAIN THE SAME FOR PLACING BEFORE YOUR HONOURS. HOWEVER, COPY OF CONTRACT NOTE DATED 02.06.1999 ISSUED BY S.K. FINANCIAL SERVICES, (APPEARING AT PAGE NO.69), COPY OF SALE BILL CUM DELIVERY LETTER NO. S3 - 26 DATED 03.06.1999 ISSUED BY S.K. FINANCIAL SERVICES SHOWING DISTINCTIVE NUMBER OF SHARES ( COPY PLACED AT PAGE NO.70), COPY OF STATEMENT OF ACCOUNTS ISSUED BY S.K. FINANCIAL SERVICES (COPY PLACED AT PAGE NO.71) ALL GO TO FULLY SUBSTANTIATE THE PURCHASE TRANSACTION OF 19,000 SHARES @RS.5.80 PER SHARE. 8. NOT - WITH - STANDING THE AFORESAID, IT IS ST ATED THAT AS PER INFORMATION MADE AVAILABLE BY THE DELHI STOCK EXCHANGE ASSOCIATION LTD. TO THE ASSESSING OFFICER, VIDE LETTER DATED 28.04.2005, WHICH IS ON THE ASSESSMENT RECORD, THE SHARES OF PARNAMI HABITAT DEVELOPERS LTD. WERE LISTED ON DELHI STOCK EXC HANGE AND THE SAME WERE TRADED AT RS. 39.85 PER SHARE ON 11.04.1997. A COPY OF DELHI STOCK EXCHANGE ASSOCIATION LTD/S LETTER DATED 28.04.2005 IS ENCLOSED AS ANNEXURE IV HERETO. IT IS STATED THAT OVER A PERIOD OF TIME, THE MARKET PRICE OF SHARES OF PARNAMI HABITAT DEVELOPERS LTD. WENT DOWN WHICH IS A VERY NORMAL FEATURE IN THIS RESUME OF BUSINESS, AND ON 02.06.1999, THE SHARES BECAME AVAILABLE AT RS. 5.80 PER SHARE. UNOMETALS LTD. 9. AS PER DETAILS GIVEN IN THE TABLE BELOW PARA 3 ABOVE, THE ASSESSEE HAD PURCHASED 25,000 SHARES OF UNOMETALS LTD. ON 23.08.1999 @ RS. 5.00 PER SHARE, THROUGH M/S. D.B. & 9 CO., A BROKER DULY REGISTERED WITH SEBI. THE COPY OF CONTRACT NOTE ISSUED BY D.B. & CO. IS PLACED AT PAGE 101 OF THE PAPER BOOK. FU RTHER, THE TRANSFER PARTICULARS OF SHARES; SUCH AS CERTIFICATE NUMBERS AND DISTINCTIVE NUMBERS ARE AVAILABLE IN THE BROKER'S BILL DATED 1.9.1999 (COPY OF THE BILL IS PLACED AT PAGE NO.102 OF THE PAPER BOOK) AS WELL AS IN THE LETTER DATED 29.9.1999 ISSUED B Y THE REGISTRAR AND TRANSFER AGENTS (COPY PLACED AT PAGE NO. 103 TO 104 OF PAPER BOOK). 10. OUT OF 25,000 SHARES OF UNOMETALS LTD., 15,000 SHARES WERE SOLD BY THE ASSESSEE ON 17.10.2000 @ RS. 50/ - PER SHARE AND BALANCE 10000 SHARES WERE SOLD ON 18.10.2000 @ 46.50 PER SHARE. VARIOUS DOCUMENTARY EVIDENCES IN SUPPORT OF PURCHASE AND SALE TRANSACTIONS ARE PLACED AT PAGE 99 TO 114 OF THE PAPER BOOK. 11. COPY OF OFFICIAL QUOTATION OF CALCUTTA STOCK EXCHANGE OF 24.08.1999 (SHARES WERE PURCHASED BY THE ASSESSEE O N 23.08.1999) IS PLACED AT PAGE NO. 105 TO 106 AND COPY OF OFFICIAL QUOTATION OF 18.10.2000 (SHARES WERE SOLD BY THE ASSESSEE ON 17.10.2000 AND 18.10.2000) IS PLACED AT PAGE 110 TO 113 OF THE PAPER BOOK. B.T.TECHNET LTD. 12. ASSESSEE HAD PURCHASED 10,000 SHARES OF B.T. TECHNET LTD., ON 04.10.1999 AT THE FACE VALUE OF RS. 10/ - PER SHARE UNDER DIRECT PREFERENTIAL ALLOTMENT BY THE COMPANY. OUT OF TOTAL PRICE OF RS.1,00,000 / - FOR ALLOTMENT OF 10,000 SHARES, RS. 25,000/ - TOWARDS SHARE APPLICATION MONEY WERE P AID BY THE ASSESSEE DIRECTLY TO THE COMPANY, THROUGH DEMAND DRAFT OBTAINED FROM CENTRAL BANK OF INDIA ON 08.09.1999 AND BALANCE RS. 75,000/ - TOWARDS ALLOTMENT MONEY WERE PAID DIRECTLY TO THE COMPANY THROUGH DEMAND DRAFT ISSUED BY STATE BANK OF INDIA ON 06.01.2000 BY DEBITING ASSESSEE'S BANK ACCOUNT NO. 4280. COPY OF DEMAND DRAFT REQUISITION DATED 08.09.1999 FOR RS. 25,000 / - , COPY OF DEMAND DRAFT NO. 045485 DATED 08.09.1999 FOR RS.25,000/ - , COPY OF SHARE APPLICATION FORM NO. 2503, COPY OF ALLOTMENT LETTER DATED 04.10.1999 ISSUED BY THE COMPANY, COPY OF SHARE CERTIFICATE DELIVERY LETTER DATED 04.10.1999, ISSUED BY THE COMPANY'S REGISTRAR AND TRANSFER AGENTS AND COPY OF PASS BOOK OF 10 STATE BANK OF INDIA ARE PLACED FROM PAGES 79 TO 87 OF THE PAPER BOOK. 13. FURTHER, IN SUPPORT OF ALLOTMENT OF 10,000 SHARES TO THE ASSESSEE, THE COMPANY B. T. TECHNET LTD. HAD ALSO ISSUED SHARE CERTIFICATES UNDER REGD. FOLIO NO. P00121, VIDE CERTIFICATES NO. 10526 TO 10625. COPIES OF SHARE CERTIFICATES ARE ENCLOSED AS ANNEXURE - V HERETO. 14. OUT OF 10,000 SHARES OF B. T. TECHNET LTD., ACQUIRED BY THE ASSESSEE FROM THE COMPANY ON THE BASIS OF PREFERENTIAL ALLOTMENT, 8000 SHARES WERE SOLD BY THE ASSESSEE ON 23.11.2000 @ RS. 147/ - PER SHARE AND REMAINING 2000 SHARES WERE SOLD BY TH E ASSESSEE ON 24.11.2000 @ RS. ISO/ - PER SHARE, THROUGH DILEEP KUMAR BHANDARI, A STOCK BROKER DULY REGISTERED WITH SEBI AND MEMBER OF M.P. STOCK EXCHANGE, INDORE. IN SUPPORT OF SALE OF SHARES ON BEHALF OF THE ASSESSEE, THE BROKER DILEEP KUMAR BHANDARI HAD ISSUED CONTRACT NOTES, SALE BILLS AND ACCOUNT STATEMENT. THE PAYMENTS WERE RECEIVED BY THE ASSESSEE THROUGH DEMAND DRAFTS, AS PER PARTICULARS GIVEN BY THE BROKER IN THE ACCOUNT STATEMENT (COPY PLACED AT PAGE NO.92 OF THE PAPER BOOK) AND THE SAME WERE DEPOS ITED IN ASSESSEE'S SAVINGS BANK ACCOUNT NO. 4280 IN SATE BANK OF INDIA. COPIES OF CONTRACT NOTES, SALE BILLS, ACCOUNT STATEMENT, PAY - IN - SLIPS AND BANK ACCOUNT PASS BOOK ARE PLACED AT PAGES 88 TO 98 OF THE PAPER BOOK. 15. AS FAR AS QUOTATION FOR THE SALE P ERIOD IS CONCERNED, IT IS STATED THAT DURING THE COURSE OF RE - ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAD HIMSELF PROVIDED TO THE ASSESSEE, A COPY OF LETTER DATED 03.05.2005 FROM M.P. STOCK EXCHANGE WHO HAVE CONFIRMED THE QUOTATION OF RS. 147/ - PER S HARE ON 23.11.2000 AND RS. 150/ - PER SHARE ON 24.11.2000. COPY OF M.P. STOCK EXCHANGE'S LETTER DATED 03.05.2005 ALONG WITH ENCLOSURE CONTAINING THE QUOTATION PARTICULARS OF 23.11.2000 AND 24.11.2000 IS ENCLOSED AS ANNEXURE - VI HERETO. 16. IT IS WORTHY OF MENTION HERE THAT THE TRANSACTIONS ARE SUPPORTED BY THE 'CONTRACT NOTES' AND AT NO STAGE THERE IS SPECIFIC 'REBUTTAL' OF THE CONTRACT NOTES IN THE PRESENT CASE. 11 7. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE CON SIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE DECISION OF CIT(A) ON MERIT OF THE CASE IS CONTAINED IN PARA NO. 5.4.1, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 5.4.1 IN LIGHT OF THESE FACTS IT IS TO BE SEEN WHETHER THE DOCUMENTS FIL ED BY THE ASSESSEE IN THE FORM OF CONTRACT NOTES ETC. IN SUPPORT OF THE CLAIM OF GENUINENESS OF THE TRANSACTIONS CAN BE RELIED UPON OR NOT. SUCH AN ISSUE CAME UP BEFORE THE ITAT IN DCIT V. SMT. PHOOLWATI DEVI [2 009] 314 ITR (AT) 1 [ITAT DELHI BENCH] IN T HE CONTEXT OF SECTION 68 IT IS OBSERVED THAT SECTION 68 OF THE INCOME - TAX ACT, 1961, REFERS TO AMOUNTS CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE BUT IT IS NOT EXHAUSTIVE OF THE ADDITIONS THAT CAN BE MADE BY THE ASSESSING OFFICER, WHERE IT IS SEEN TH AT THE ASSESSEE IS IN RECEIPT OF MONIES, THEN NOTWITHSTANDING THAT HE DOES NOT MAINTAIN BOOKS OF ACCOUNT IN WHICH SUCH MONIES ARE RECORDED, IT IS HIS BURDEN, WHEN CALLED UPON, TO POINT OUT THE NATURE AND SOURCE OF THE MONEY AND IF HIS EXPLANATION IN THIS B EHALF IS NOT FOUND SATISFACTORY IT IS OPEN TO THE ASSESSING OFFICER TO ADD THE SAME AS HIS INCOME. FOR THIS PURPOSE, IT IS NOT NECESSARY FOR THE ASSESSING OFFICER TO RELY ON SECTION 68 OF THE ACT. THUS, IT WAS HELD, ALLOWING THE APPEAL, THAT DESPITE THE DOCUMENTATION SUPPORTING THE CLAIM OF THE ASSESSEE SUPERFICIALLY, THE EVIDENCE COULD NOT BE ACCEPTED IN VIEW OF THE SURROUNDING CIRCUMSTANCES AND HUMAN PROBABILITIES. THERE WERE CERTAIN FEATURES OF T HE CASE, WHICH BELIE THE DOCUMENTARY EVIDENCE. FIRSTLY, THE LOANS WERE USED BY THE ASSESSEE FOR A PERIOD OF THREE AND HALF YEARS BUT DID NOT CARRY ANY INTEREST. SECONDLY, IN ALL THE CASES, THE ISSUE OF DRAFT IN FAVOUR OF THE ASSESSEE FROM THE BANK ACCOUNTS OF THE CREDITORS WAS PRECEDED BY AN EQUIVALENT OR ALMOST EQUIVALENT AMOUNT OF CASH DEPOSIT IN THE BANK ACCOUNTS OF THE CREDITORS. THIRDLY, IN A FEW CASES, THE CASH DEPOSIT INCLUDED THE COMMISSION PAYABLE FOR THE DRAFTS. FOURTHLY, THE CLOSE PROXIMITY BETWE EN THE DATES OF THE CASH DEPOSIT AND THE ISSUE OF THE DRAFTS IN SOME CASES WERE ON THE SAME DATE. MOREOVER, THERE WAS NO EVIDENCE TO SHOW THAT THE CREDITORS HAD THE BANKING HABIT IN MOST OF THE CASES, THERE WERE 12 VERY FEW TRANSACTIONS REFLECTED IN THE BANK STATEMENT. THE MERE FACT THAT THE HANDWRITING IN THE PAY - IN - SLIP WAS THAT OF THE CREDITORS DID NOT PROVE THAT THE MONIES ACTUALLY BELONGED TO THEM. THEREFORE, CONSIDERING THE CIRCUMSTANCES AND APPLYING THE TEST OF HUMAN PROBABILITIES IT COULD NOT BE HELD T HAT THE ASSESSEE HAD TAKEN A GENUINE LOAN. THE DECISIONS IN CIT V. DURGA PRASADMORE [1971] 82 ITR 540 (SC) AND SUMATI DAYAL V. CIT [1995]214 ITR 801 (SC) WERE APPLIED. THE RATIOS OF 82 ITR 540 (SC) AND 214 ITR 801 (SC) ARE APPLICABLE TO THE FACTS OF THE C ASE AS THE ASSESSEE, WHO HAD NO PREVIOUS HISTORY OF EITHER DEALING IN SHARES NOR HAD ANY EXCEPTIONAL KNOWLEDGE OF SHARE MARKET, HAD SHOWN EXORBITANT GAINS MERELY ON THE BASIS OF THE CONTRACT NOTES AND MONEY RECEIVED THROUGH BOGUS TRANSACTIONS. HENCE, IN VI EW OF THE CATEGORICAL FINDINGS OF THE ASSESSING OFFICER, THE SURROUNDING CIRCUMSTANCES AND HUMAN PROBABILITIES, THE EVIDENCES FILED BY THE ASSESSEE IN SUPPORT OF THE CAPITAL GAINS CANNOT BE RELIED UPON AND HAVE TO BE REJECTED .AND THE ASSESSMENT ORDER HAS TO BE UPHELD. THE ASSESSMENT HAS BEEN RIGHTLY MADE BY TREATING THE INCOME SHOWN UNDER THE HEAD LONG TERM CAPITAL GAINS AS INCOME FROM OTHER SOURCES AND THE VIEW OF THE ASSESSING OFFICER IS HEREBY CONFIRMED. THE PAYMENT OF SERVICE TAX DOES NOT MAKE THE TRAN SACTIONS GENUINE. THUS, THE GROUNDS OF APPEAL NO. 7 TO 10 AND 12 ARE HEREBY REJECTED. 8.1 FROM THE ABOVE PARA FROM THE ORDER OF CIT(A), WE FIND THAT HIS DECISION IS MERELY BY FOLLOWING THE DECISION OF HON'BLE APEX COURT RENDERED IN THE CASE OF CIT VS. DURGA PRASAD MORE [1971] 82 ITR 540 (SC) AND IN THE CASE OF SUMATI DAYAL VS. CIT [1995] 214 ITR 801 (SC) . THIS IS THE BASIS OF DECISION OF CIT(A) THAT THE ASSESSEE HAD NO PREVIOUS HISTORY OF EITHER DEALING IN SHARES NOR HAD ANY EXCEPTIONAL KNOWLEDGE OF SHARE MARKET THEN HOW THE ASSESSEE CAN CLAIM EXORBITANT LONG TERM CAPITAL GAIN MERELY ON THE BASIS OF THE CONTRACT NOTES AND MONEY RECEIVED THROUGH BOGUS TRANSACTIONS. ON THIS ASPECT , WE ARE O F THE OPINION THAT IN VIEW OF VARIOUS DOCUMENTS BROUGHT ON RECORD BY THE ASSESSEE DURING THE ASSESSMENT STAGE AND BEFORE THE CIT(A) AND BEFORE THE TRIBUNAL IN THE FORM OF CONTRACT NOTES ISSUED BY SHARE BROKERS ALONG WITH THE QUOTATION OF STOCK EXCHANGES AN D THE RECEIPT 13 OF CHEQUE AND PAYMENT BY CHEQUE FOR THESE SALES AND PURCHASE OF SHARES ETC., IT CANNOT BE STATED BY THE CIT(A) THAT THE TRANSACTIONS ARE BOGUS. REGARDING THIS ALLEGATION THAT THE ASSESSEE HAS NO PREVIOUS HISTORY OF DEALING IN SHARE, WE WOULD LIKE TO OBSERVE THAT THE COMPUTATION OF INCOME OF THE ASSESSEE IS AVAILABLE ON PAGES 19 TO 20 OF THE PAPER BOOK AND THE INCOME RETURNED BY THE ASSESSEE INCLUDES AN INCOME OF RS.49,660/ - ON ACCOUNT OF NET SPECULAT ION PROFIT FROM PURCHASE AND SALE OF SHARES. WE ARE OF THE CONSIDERED OPINION THAT FOR A N ASSESSEE WHO IS ENGAGED IN THE ACTIVITY OF SPECULATION IN SHARES, IT CANNOT BE SAID THAT THE ASSESSEE HAS NO EXPERIENCE OR KNOWLEDGE OF ANTICIPATING GAIN OR LOSS IN SHARE TRANSACTION AND HENCE, THIS BASIS ADOPTED BY CIT(A) IS WITHOUT ANY BASIS. WE ALSO FIND THAT ALONG WITH THE WRITTEN SUBMISSIONS OF LEARNED A.R. OF THE ASSESSEE , AS REPRODUCED ABOVE, THE ASSESSEE HAS FURNISHED THE OFFICIAL QUOTATION OF VARIOUS STOCK EXCHANGES REGARDING PURCHASE AND SA LE OF THESE SHARES. REGARDING PARNAMI HABITAT DEVELOPERS LTD., THE ASSESSEE HAS FURNISHED OFFICIAL QUOTATION OF M.P. STOCK EXCHANGE AS ON 05/09/2000, WHICH IS AVAILABLE ON PAGE NO. 77 OF THE PAPER BOOK AND AS PER THE SAME, OFFICIAL QUOTATION IS SHOWN AT R S.114/ - PER SHARE. THE ASSESSEE HAS SHOWN SALE OF THESE SHARES ON 05/09/2000 AT RS.114/ - PER SHARE. REGARDING OFFICIAL QUOTATION ON DATE OF PURCHASE, IT IS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE IN THE WRITTEN SUBMISSIONS THAT THE SAID QUOTATION IS NO T READILY AVAILABLE AND IT CANNOT BE OBTAINED NOW BECAUSE THE TRANSACTION PERTAINS TO MORE THAN 15 YEARS OLD. REGARDING TRANSACTION IN SHARES OF UNOMETALS LTD., THE ASSESSEE HAS SUBMITTED THAT THESE SHARES WERE SOLD BY THE ASSESSEE ON 17/10/2000 AT RS.50/ - PER SHARE TO THE EXTENT OF 15,000 SHARES AND BALANCE 10,000 SHARES WERE SOLD ON 18/10/2000 @RS.40/ - PER SHARE. THE ASSESSEE HAS ALSO FURNISHED THE COPY OF CALCUTTA STOCK EXCHANGE ON 24/08/99 AND THE SHARES WERE PURCHASED BY THE ASSESSEE ON 23/08/2000 AV AILABLE ON PAGES 105 TO 106 OF THE PAPER BOOK. REGARDING THE QUOTATION ON THE DATE OF SALE OF THESE SHARES, IT HAS BEEN SUBMITTED THAT OFFICIAL QUOTATION OF 17 & 14 18 /10/2000 IS AVAILABLE ON PAGES 110 TO 113 OF THE PAPER BOOK AND THE SHARES WERE SOLD ON 17/ 08/2000. REGARDING THE THIRD SHARE OF B.T. TECHNET LTD., IT WAS SUBMITTED THAT THESE SHARES WERE ACQUIRED BY THE ASSESSEE DIRECTLY FROM THE COMPANY UNDER ALLOTMENT ON 04/10/99 AT FACE VALUE OF RS.10/ - AND THE PAYMENT WAS MADE BY CHEQUE DIRECTLY TO THE ISS UING COMPANY. THE COMPANY HAS ALSO ISSUED SHARE CERTIFICATES WITH FOLIO NUMBER P00121 VIDE CERTIFICATE NO.10526 TO 10625 AND COPIES ARE ALSO ENCLOSED WITH THE WRITTEN SUBMISSIONS. OUT OF THESE SHARES ACQUIRED BY THE ASSESSEE COMPANY ON THE BASIS OF PREFE RENTIAL ALLOTMENT, 8,000 SHARES WERE SOLD ON 23/11/2000 @RS.147/ - PER SHARE AND THE REMAINING 2000 SHARES WERE SOLD BY THE ASSESSEE ON 24/11/2000 @RS.150/ - PER SHARE. REGARDING OFFICIAL QUOTATION OF THESE SHARES, IT HAS BEEN SUBMITTED BY THE ASSESSEE THAT THE ASSESSING OFFICER HAD HIMSELF PROVIDED TO THE ASSESSEE, A COPY OF LETTER DATED 03/05/2005 FROM M. P. STOCK EXCHANGE WHO HAVE CONFIRMED THE QUOTATION OF RS.147/ - PER SHARE ON 23/11/2000 AND RS.150/ - PER SHARE ON 24/11/2000. COPY OF M.P. STOCK EXCHANGE LETTER DATED 03/05/2005 ALONG WITH ENCLOSURE CONTAINING THE QUOTATION PARTICULARS OF 23/11/2000 AND 24/11/2000 IS ENCLOSED WITH THE WRITTEN SUBMISSIONS. 9. WE HAVE EXAMINED ALL THESE DOCUMENTS AND THE CONTENTIONS RAISED BY THE LEARNED A.R. OF THE ASSESSE E IN THE WRITTEN SUBMISSIONS ARE FOUND TO BE CORRECT BECAUSE ALL THESE QUOTATIONS ARE AVAILABLE IN THE PAPER BOOK ON THE PAGES MENTIONED IN THE WRITTEN SUBMISSIONS AND THESE QUOTATIONS ARE IN LINE WITH THE SALE PRICES DISCLOSED BY THE ASSESSEE. WHEN THE P AYMENT FOR PURCHASE OF SHARES HAS BEEN MADE BY CHEQUES AND SALE PROCEEDS WERE REALIZED BY CHEQUE AND THE PURCHASE AND SALE P RICES ARE SUPPORTED BY OFFICIAL QUOTATION OF STOCK EXCHANGE OR BY PREFERENTIAL ALLOTMENT BY COMPANY IN ONE CASE AND NO POSITIVE ADV ERSE MATERIAL HAS BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER EXCEPT THE STATEMENT OF SOME BROKER 15 CONT ENDING THAT HE IS PROVIDING ACCOMMODATION ENTRIES, IT CANNOT BE SAID THAT THE CLAIM OF THE ASSESSEE IS LIABLE TO BE REJECTED. 10. RELIANCE WAS PLACED BY LEARNED A.R. OF THE ASSESSEE ON A TRIBUNAL DECISION RENDERED IN THE CASE OF MOHIT AGARWAL VS. ACIT IN I.T.A. NO.171/LKW/2008 DATED 28/11/2008, COPY OF WHICH IS AVAILABLE ON PAGES 116 TO 148 OF THE PAPER BOOK. IN THAT CASE ALSO, THE DISPUTE WAS IDENTIC AL BECAUSE IN THAT CASE ALSO, THE ASSESSEE ACQUIRED LONG TERM CAPITAL GAIN ON SALE OF SOME QUOTED SHARES AND THE REVENUE WAS OF THE VIEW THAT THESE ARE BOGUS TRANSACTIONS AND REVENUE IN THAT CASE ALSO , TREATED THE SAME AS UNDISCLOSED INCOME. IN THAT CASE, THE DECISION OF THE TRIBUNAL IS AS PER PARA 11 OF THE TRIBUNAL ORDER, WHICH IS AVAILABLE ON PAGE 134 OF THE PAPER BOOK AND IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 11. THERE IS NO DOUB T IN SUCH CASES, THE BROKERS BECOME THE WITNESSES OF THE DEPARTMENT. THE DEPARTMENT HAS GOT STATEMENTS OF THESE BROKERS WHICH ARE USED AGAINST THE ASSESSEE. IRRESPECTIVE OF THE FACT THAT THE STATEMENTS WERE RECORDED AT THE BACK OF THE ASSESSEE AND THAT TH E ASSESSEE WAS OR WAS NOT AFFORDED OPPORTUNITY FOR CROSS - EXAMINATION, WHEN OVERWHELMING DOCUMENTARY EVIDENCES ARE PRODUCED BY THE ASSESSEE, THE BURDEN SHIFTS ON THE REVENUE TO EXPLAIN AWAY THEM. EVERY TIME THE STATEMENTS CANNOT HELP THE DEPARTMENT. HOW THE ABOVE MENTIONED EVIDENCES COULD BE IGNORED? THE REVENUE HAS TO GIVE REASONS F O R REJECTING THEM. THESE ARE IMPORTANT D O CUME N TS, SOME OF THE M ARISE UNDER THE PROVISIONS OF THE COMPANIES ACT. THE BROKERS WERE NEVER CONFRONTED WITH THE EVIDENCES PR ODUCED BY THE ASSESSEE . THE APPARENT HAS TO BE TREATED AS REAL UNLESS PROVED OTHERWISE. LONG AGO HON'BLE SUPREME COURT HAS LAID THIS LAW WHILE RENDERING THE CELEBRATED DECISION IN THE CASE CIT VS. DAULAT RAM RAWATMAL [1964] 53 ITR 574 (SC). THE ASSESSEE HA S COUNTERED THE STATEMENTS OF BROKERS BY WAY OF HIS DULY SWORN - IN AFFIDAVIT. WE HAVE EXAMINED THE ENTIRE EVIDENCES PLACED IN THE PAPER BOOK OF THE ASSESSEE. 16 10.1 FROM THE ABOVE PARA OF THE TRIBUNAL DECISION, IT IS SEEN THAT IT WAS HELD BY THE TRIBUNAL IN THAT CASE THAT E VERY TIME THE STATEMENTS CANNOT HELP THE DEPARTMENT. IT IS ALSO OBSERVED THAT HOW THE ABOVE MENTIONED EVIDENCES COULD BE IGNORED? THE EVIDENCES REFERRED TO BY THE T RIBUNAL WERE COPIES OF SALES AND PURCHASE BILLS, SHARE CERTIFICATES AND TRANSFER LETTERS, CONTRACT NOTES, DULY TRANSFERRED SHARE CERTIFICATES RECEIVED FROM THE COMPANIES AND AFFIDAVIT. IN THE PRESENT CASE ALSO, THE ASSESSEE HAS FURNISHED COPY OF SALE AND PURCHASE BILL, CONTRACT NOTE, SHARE CERTIFICATES ETC. THE ASSESSEE HAS ALSO FURNISHED THE OFFICIAL QUOTATION FROM VARIOUS STOCK EXCHANGES. IT WAS OBSERVED BY THE TRIBUNAL IN THAT CASE THAT THE REVENUE HAS TO GIVE REASONS FOR REJECTING THESE DOCUMENTS. I T WAS ALSO HELD BY THE TRIBUNAL THAT T HESE ARE IMPORTANT DOCUMENTS, SOME OF THEM ARISE UNDER THE PROVISIONS OF THE COMPANIES ACT. IT IS ALSO OBSERVED THAT T HE BROKERS WERE NEVER CONFRONTED WITH THE EVIDENCES PRODUCED BY THE ASSESSEE. THE TRIBUNAL ALSO ST ATED THAT APPARENT HAS TO BE TREATED AS REAL UNLESS PROVED OTHERWISE. THE TRIBUNAL HAS REFERRED TO A JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF CIT VS. DAULAT RAM RAWATMAL [1964] 53 ITR 574 (SC) . IN OUR CONSIDERED OPINION, THIS TRIBUNAL DECISION IS SQUARELY APPLICABLE IN THE PRESENT CASE AND RESPECTFULLY FOLLOWING THIS TRIBUNAL DECISION, WE HOLD THAT THE EVIDENCES BROUGHT ON RECORD BY THE ASSESSEE IN SUPPORT OF THE CLAIM OF LONG TERM CAPITAL GAI N CANNOT BE REJECTED BY THE REVENUE WITHOUT BRINGING ADVERSE MATERIAL ON RECORD AND MERELY ON THE BASIS OF SOME STATEMENT OF SOME BROKER. THE THEORY OF HUMAN PROBABILITY IS ALSO NOT ATTRACTED IN THE PRESENT CASE BECAUSE THIS IS NOT ED THAT THE ASSESSEE IS ENGAGED IN THE SPECULATION TRANSACTIONS IN SHARE ALSO AND THEREFORE, THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF CIT V. DURGA PRASADMORE [1971] 82 ITR 540 (SC) AND SUMATI DAYAL V. CIT [1995]214 ITR 801 (SC) ARE NOT RENDERING ANY HELP TO THE REVENUE I N THE FACTS OF THE PRESENT CASE. WE, THEREFORE, HOLD THAT IN THE FACTS OF THE PRESENT CASE, AS DISCUSSED ABOVE, THE CLAIM OF 17 THE ASSESSEE REGARDING LONG TERM CAPITAL GAIN DESERVES TO BE ACCEPTED. WE DIRECT THE ASSESSING OFFICER ACCORDINGLY. ACCORDINGLY, THESE GROUNDS OF THE ASSESSEE ARE ALLOWED. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GAROD IA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 12 /03/2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR