ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Revenue is in appeal against the judgement of the Income Tax Appellate Tribunal dated 06.01.2017 raising following questions for our consideration:
(A) Whether in the facts and circumstances of the case, Appellate Tribunal is correct in upholding the order of CIT(A) without appreciating the fact that in the group cases of Mahasagar Securities Pvt Ltd, Shri Mukesh Choksi who had managed and had control over the above group had admitted during the course of search that the group was engaged in fraudulent billing activities in the business of providing bogus speculation profit/loss, short term/long term capital gain/loss, commodities
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profit/loss on commodity trading (through MCX)?
(B) Whether in the facts and circumstances of the case, Appellate Tribunal is correct in upholding the order of CIT(A) in allowing the claim of assessee for LTCG of Rs.94,49,383/-?
(C) Whether in the facts and the circumstances of the case, Appellate Tribunal is correct in upholding the order of CIT(A) in deleting the addition of Rs.13,17,873/- treated as income from other sources by the Assessing Officer and allowing the claim of the assessee as STCG of Rs.32,94,684/-?
(D) Whether in the facts and the circumstance of the case, Appellate Tribunal is correct in upholding the order of CIT(A) holding the shares transactions to be genuine since the same were carried out through banking channel though the same were not executed on the floor of NSE/ISE?
(E) Whether in the facts and the circumstances of the case, the Appellate Tribunal is correct in upholding the order of CIT(A) in accepting the contention of the assessee that sale of shares was genuine, which was substantiated by bogus documents?
2. Though multiple questions are framed, central issue is with respect to the assessee's purchase and sale leading to long term and short term capital accounts. The Assessing
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Officer doubted the transactions holding them to be sham and bogus interalia on the premise that the key person of the company whose shares the assessee had traded in had admitted in his statement during the search that the group was engaged in providing accommodation entries. The Assessing Officer thereupon held that the assessee had made unaccounted investment.
3. In further appeals, the CIT(Appeals) and the Tribunal deleted the additions. CIT(Appeals) in his elaborate order considered the nature of transactions and while deleting the addition observed that the assessee had shown the identity of the person from whom the sale consideration was received. He had also proved the genuineness of the transaction by submitting demat statement of the seller, sale invoices of the broker and copy of the bank statement through which the transactions were routed. Interalia, on such grounds the CIT(Appeals) allowed the appeal. The Tribunal additionally relied on similar issues which were decided by the Bombay Tribunal to dismiss the revenue's appeal.
4. The issue is primarily based on appreciation of facts and materials on record and is purely factual in nature. No question of law arises. Tax appeal is dismissed.
(AKIL KURESHI, J.)
(BIREN VAISHNAV, J.)
divya
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