P.K Bansal, A.M:— This appeal has been field by the Revenue against the order of the CIT(A) dated 28.01.2010 The only ground taken in this appeal relates to the deletion of addition of Rs. 11,37,480/- made on account of unexplained income of Long Term Capital Gain on sale of shares.

2. The brief facts of the case are that the assessee submitted return of income of Rs. 8,54,330/- in which Short Term Capital Gain of Rs. 10,54,044/- was shown against which set off of brought forward losses under the head ‘capital gains’ was also claimed for the earlier years to the extent of Rs. 16,72,787/- and thus, the balance capital loss was claimed to be carried forward amounting to Rs. 6,18,743/-. The Short Term capital gain was worked out by the assessee on sale of 12000 shares of Suma Finance Limited for Rs. 11,37,480/- which were purchased on 10.05.2001 for Rs. 83,436/- inclusive of transfer charges and bank charges. During the course of assessment proceedings the assessee submitted that 12000 shares of Suma Finance Limited were purchased for Rs. 80,460/- on 10.05.2001 through broker Aggarwala & Co., New Delhi vide their Bill No. SB-1705 dated 17.05.2001 and these shares were sold on 28.12.2001 vide Bill No. P2-1201 dated 12.01.2001 through Sridhar Financial Services Limited, New Delhi for a net consideration of Rs. 11,37,480/-. Photocopies of bills for purchase and sale along with contract notes were filed. The purchase consideration was paid vide Demand Draft No. 195551 (Rs. 80,000/-) and cash of Rs. 460/-. The sale proceeds were shown as received from Sridhar Financial Services Limited through Demand Drafts on Nainital Bank Limited, detailed as under:—

28.01.2002 Rs. 6,00,000/- 29.01.2002 Rs. 5,37,480/-

3. Requisitions were issued by the Assessing Officer to Aggarwal & Co. and Sridhar Financial Services Limited. Both the requisitions returned unserved with the postal remark “left without address”. The assessee submitted photocopy of the share certificates showing the transfer of the shares in assessee's name along with photocopy of the letter dated 30.06.2001 of Suma Finance & Investment Limited intimating transfer of the impugned shares in favour of the assessee. The A.O also enquired from Delhi Stock Exchange which intimated that no trading has taken place in the shares of Suma Finance on 10.05.2001 in Delhi Stock Exchange. The A.O also deputed the Inspector to collect the information but the Inspector could not trace out the companies as per the report as reproduced in the Assessment Order. Ultimately, the Assessing Officer held that the transaction to be sham and treated Rs. 11,37,480/- as income from undisclosed sources. The assessee went in appeal before the CIT(A). The CIT(A), ultimately, after going through the submissions of the assessee, directed the Assessing Officer to adopt the Short Term Capital Gains as per return and allow set off of brought forward losses under the head ‘capital gains’ after verification, by observing as under:—

“It is seen that the Assessing Officer has not doubted the appellant's investment in the impugned shares. Rather, he has questioned the purchase of the impugned shares @ Rs. 6.60 per share which was higher than the rate of Rs. 3.90 quoted on the Delhi Stock Exchange. The appellant has claimed to have paid the purchase consideration by draft which has not been controverted by the Assessing Officer. The impugned remittances of Rs. 11,37,480/- were received by the appellant by drafts of Nainital Bank Limited from Shridhar Financial Services Limited which has not been controverted by the Assessing Officer. The existence of the broker Shridhar Financial Services Limited is not in doubt as the U.P Stock Exchange has confirmed that it was registered as a broker on the U.P Stock Exchange. The existence of company Suma Finance & Investment Limited is not in doubt insomuch that its shares were being traded on the Delhi Stock Exchange. The shareholding of the appellant has not been controverted by the Assessing Officer. The selling rate is endorsed by the quotation on record which is un-refuted.

In view of the foregoing I find that the impugned share transactions have not been proved as non-genuine and therefore, finding of the Assessing Officer that the short term capital gains disclosed by the appellant is her undisclosed income, is not tenable. Accordingly, the Assessing Officer is directed to adopt the short term capital gains as per return and allow set off of brought forward losses under the head ‘capital gains’ after verification.”

4. We have carefully considered the rival submissions and perused the material on record. The issue is duly covered by the decision of Third Member in the case of ITO v. Smt. Bibi Rani Bansal in ITA No. 101.Agr/2005 for the A.Y 2001-2002, in which, vide order dated 09.02.2010 this Tribunal has confirmed the order of the CIT(A). We noted, in that case, the assessee has purchased the shares and sold those shares through P.K Jain & Associates i.e the broker. The purchase of shares has not been doubted by the Assessing Officer. Similarly, the purchase has not been doubted by the Assessing Officer in the case before us. The Assessing Officer has doubted the sale consideration which was received by the assessee through Demand Draft from Sridhar Financial Services Limited on Nainital Bank Limited. The Assessing Officer doubted the sales transaction. In that case, this Tribunal, after considering all the aspects, has held as under:—

“10. I have carefully considered the rival submissions alongwith the orders of the Tax Authorities below as well as the order of my ld. colleague Members. I noted that while passing the dissent order the ld. A.M has mainly relied on its separate order passed in the case of Shri Baijnath Agarwal (ITA No. 133.Agr/2005). I have gone through the order of Shri Baijnath Agarwal and noted that in his dissent order in that case the ld. A.M has relied on the decision of Shri Ashok Kumar Lavania (ITA No. 112.Agr/2004). I have gone through the decision of Shri Ashok Kumar Lavania in ITA No. 112.Agr/2004 which was decided by the Bench constituting of same ld. J.M and ld. A.M vis-à-vis the facts of the case of the assessee. In that case also the transaction of sales has not been accepted by the A.O as he doubted the sale prices and also relied on the statement of Shri Ashok Gupta, Director of JRD Stock Brokers Pvt. Ltd. who stated that as a matter of fact there was no actual purchase and sale of shares as was reflected in the contract notes issued by JRD Stock Brokers Pvt. Ltd. to the beneficiaries. In that case the assessee claimed Long Term Capital Gain of Rs. 25,14,770/- and claimed exemption under section 54EA of the Act. The LTCG was shown on account of sale of shares through the brokers. The assessee submitted the copies of bills, share certificates, contract notes etc. during the course of assessment proceedings alongwith details of demand draft through which the sale proceeds has been received. It was also pointed out that the purchases were made through broking concern JRD Stock Brokers Pvt. Ltd. The A.O noticed that the shares were purchased @ Rs. 4/- per share and sold @ Rs. 65/- to Rs. 84/- per share. The A.O was of the view that the transactions were not genuine and are only accommodation entries. The broker pointed out that he was engaged in giving bogus entries for the purchase and sale of the shares on commission basis. When the matter traveled to the Tribunal, the Tribunal deleted the addition by observing as under:—

“(10) So in the given case also the department cannot treat the long term capital gains as assessee's income from other sources. There is no direct evidence. The statements of the brokers were recorded at the back of the assessee. An opportunity of cross-examination means and implies a clear opportunity after providing copies of such adverse statements to cross-examine. Otherwise also the statement of Shri Ashok Gupta is too vague to be of any evidentiary value. He has nowhere stated that the transaction of the assessee was bogus or not genuine. He has no corroborative evidence to show that the cash for drafts was received from the assessee. In the absence of any corroborative evidence his statement cannot be accepted as true on his mere ipse dixit. Shri Manoj Agarwal was not produced for cross-examination. From his statement no adverse inference can be drawn against the assessee. Shri Manoj Agarwal handed over a letter to D.D.I (Inv) in which he stated that out of the total transactions, the transactions amounting to Rs. 100 crores were only book entries. So it follows as a necessary corollary that entire transactions were not in-genuine. He has also not named this assessee. With regard to Agarwal & Company, there are no adverse comments in the Assessment Order against the assessee. The A.O has not said anything about the transactions entered through this broker. Whereas the assessee has produced:

i) copies of sales and purchase bills;

ii) share certificates and transfer letters;

iii) contract notes;

iv) duly transferred share certificates received from the companies; and v) affidavit.

(11) There is no doubt, 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 the 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 for rejecting them. These are important documents, some of them arise under the provisions of the Companies Act. The brokers were never confronted with the evidences produced by the assessee. The apparent has to be treated as a real unless proved otherwise. Long ago Hon'ble Supreme Court has laid this law while rendering the celebrated decision in the case of CIT v. Daulat Ram Rawatmal (1964) 53 ITR 574 (SC). The assessee has 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.

(12) In the case of ITO v. Smt. Kusumlata reported in (2006) 105 TTJ (Jd.) 265, copy placed at page no. 4 of assessee's Paper Book (judgements relied), the Hon'ble Jodhpur Bench has held as under:—

“For making addition under section 69, the Department is required to prove to the hilt that the impugned transactions are bogus. The burden cast on the Department is very high which is required to be discharged conclusively in this case; there is no such evidence. The assessee has purchased shares from MS. These purchases are evidenced from the contract note. The payment was made by cheque. These shares were transferred in the name of the assessee. The assessee held these shares for more than one year. She sold these shares to J., a member of stock exchange. J. in his letter has confirmed that transaction and the payment was made through cheque. The assessee has provided all the requisite evidences in support of all transactions. Simply because J. could not produce his books of account or the quoted rate of shares in stock exchange being less or the transactions being not reported by J. to the stock exchange, would not make a transaction bogus. The stock exchange has intimated the A.O that they are only having information of the transactions between two members of the stock exchange and not otherwise. In the present case, the transaction was between a member and a non-member and therefore, such transactions were not reported in the stock exchange. Further, the credit in the bank account of J. is by clearance. Therefore, the allegation of the A.O that the amount was deposited in cash has no basis. The assessee has accepted having invested her funds on the advice of her father-in-law. The burden of proving a transaction is always on the person asserting it to be bogus and this burden has to be strictly discharged by adducing legal evidence of a character, which would either directly prove the fact of bogusness or establish circumstances unerringly and reasonably raising an inference to that effect. The assessee made payment for the purchase from her own sources through banking channel. The shares were transferred in the name of the assessee and were held by her for more than one year. There is no relationship between the party from whom the assessee purchased the shares and the party to whom these were sold. The shares were delivered after its sale and the assessee did not remain in possession of those shares. From the above facts, it is established that the assessee acquired the shares to earn profit. There is no evidence except speculation that this profit is not from the sale of shares. The A.O has failed to establish his case and to discharge the requisite burden cast on him. The Authorised Representative has filed the requisite quotation of 18th July, 1996 along with the requisite proof of transactions of 9000 shares along with transfer of share certificate. Therefore, in the given facts and circumstances of the case, the CIT(A) has correctly come to the conclusion that the assessee has dealt in these shares and these transactions cannot be held bogus. The deletion of addition of Rs. 4,99,062/- is confirmed.”

(13) The above decision clearly helps the case of the assessee.

(14) Credence cannot be given to the statements of the persons who themselves admit and have dubious dealings as against the documentary evidences produced by the assessee.

(15) Moreover, when purchases have not been doubted or disputed by the Revenue in this case, the decision of Hon'ble Punjab & Haryana Court relied by learned A.R in the case of Commissioner Of Income-Tax v. Anupam Kapoor reported in (2008) 299 ITR 179 (P&H) is very much relevant. The held portion of this decision is extracted herein below:—

“Held, dismissing the appeals, that there was no material before the Assessing Officer which could have led to a conclusion that the transaction was a device to camouflage activities to defraud the Revenue. No such presumption could be drawn by the Assessing Officer merely on surmises and conjectures. The Tribunal took into consideration that it was only on the basis of a presumption that the Assessing Officer concluded that the assessee had paid cash and purchased the cheque. In the absence of any cogent material in this regard, having been placed on record, the Assessing Officer could not have reopened the assessment. The assessee had made an investment in a company, evidence whereof was with the Assessing Officer. Therefore, the Assessing Officer could not have added the income, which was rightly deleted by the Commissioner (Appeals) as well as the Tribunal”

(16) Thus, the sum total of the foregoing discussions go to, cumulatively, establish that the assessee has been successful in proving the long term capital gain earned by him in this case. He has also established that he is exempt from tax qua long term capital gains as has been claimed.”

11. In my opinion, this case is equally applicable in the case of the assessee. In the case of the assessee, purchase of the shares has duly been proved and there is no dispute on the purchase of the shares being made by the assessee. The shares were purchased in earlier year. The shares were transferred in the name of the assessee as has been confirmed by the company when enquired by the A.O The assessee has submitted before the A.O, copies of the contract notes, copies of the sales bills, statement of account from the broker, old address of the broker, new address of the broker. The identity of the broker is proved. Purchases were not doubted by the A.O The demand draft for the sale consideration was issued from the account of P.K Jain & Associates i.e brokers. The money has not been deposited in cash in this account but has come to this account by way of transfer from the account of S.G Fincap Limited. The ld. A.M has distinguished the decision of Ashok Kumar Lavania. On the basis of that, in Ashok Kumar Lavania's case purchase of the shares was not in dispute. While in fact in assessee's case the purchase of shares is also not in dispute but rather the company has directly confirmed to the A.O the purchase of the shares by the assessee in reply to the notice issued under section 133(6). The ld. A.M was also the party to that decision. I noted that in this case the A.O has doubted the sale consideration because the share price has increased tremendously. I noted that in the case of Ashok Kumar Lavania also the assessee has purchased the share @ Rs. 4/- per share and sold @ Rs. 65/- to Rs. 84/- per share. In that case also the broker has not accepted the transaction but on the basis of the evidence the Tribunal has accepted the transaction to be genuine one as there was no corroborative evidence to support the statement of the broker. In this case, I noted that the statements of the broker couldn't be given any credence as he has stated differently vide different letters. Earlier he denied the transaction being entered into. Subsequently he has accepted that he has issued the draft after receiving the cash. Again he said that the cash was routed through some bogus account but he accepted that the draft has been made from his account. Subsequently, again he pointed out that he received cash of Rs. 9,00,000/- and Rs. 5,00,000/- while he has issued draft of Rs. 5,99,500/- and Rs. 6,19,508/- respectively. What happened to the balance amount? Nothing has been brought on record or stated by the broker. The assessee was not provided cross-examination. The statement has been recorded at the back of the assessee. This is a settled law that no addition can be sustained on the basis of the statement recorded at the back of the assessee and without giving opportunity to the assessee to cross examine the person who has given the statement at the back of the assessee. I have also gone through the decision of Delhi High Court in the case of SMC Share Brokers Limited, 288 ITR 345 (Delhi) and that of Kishan Chand Chellaram, 125 ITR 713 (SC) and that of Umacharan Shaw & Bros., 37 ITR 271 (SC). All those decisions lay down the proposition of the law that statement recorded at the back of the assessee cannot be used against the assessee until and unless the assessee has been given the opportunity to cross examine the person. Ld. D.R was asked in the open Court whether any opportunity for cross examination was provided to the assessee in respect of the broker. The ld. D.R expressed his inability as the record does not show that any such opportunity was provided. In almost similar circumstances, Hon'ble Calcutta High Court in the case of Eastern Commercial Enterprises (210 ITR 103) observed as under:—

“At the earlier occasion he claimed all his sales to be genuine but before the Assessing Officer in the case of the assessee, he disowned the sales specifically made to the assessee. This statement can at the worst show that S is not a trustworthy witness and little value can be attached to what he stated either in his affidavit or in his cross examination by the Assessing Officer. His conduct neutralizes his value as a witness. A man indulged in double speaking cannot be said by any means a truthful man at any stage and no court can decide on which occasion he was truthful.”

12. Further, as noted, the statement was recorded by the DDI, Investigation Wing, Agra and not by the Assessing Officer himself. Thus, the truthfulness of the statement remained untested by the Assessing Officer. ITAT, Delhi in the case of Rajeev Agarwal (139 Taxman 170 (Mag.)) has observed as under:—

“The mere reliance on the statement of third parties who were never examined by the Assessing Officer himself cannot be held to be sufficient to come to the finding that the transaction was not genuine and more so when there are other material and evidences to support the transaction.”

13. Hon'ble Delhi High Court in the case of Commissioner Of Income-Tax v. Smc Share Brokers Ltd. (288 ITR 345) also observed as under:—

“There is no doubt that the statement of Manoj Agarwal had evidentiary value but weight could not be given to it in proceedings against the assessee without it being tested under cross-examination. In the absence of statement being tested, it cannot be said that it should be believed completely to the prejudice of assessee.”

14. Under these facts, I am of the opinion that the case of the assessee is duly covered by the Division Bench of this Tribunal in the case of Ashok Kumar Lavania in ITA No. 112.Agr/2004 which has been decided by the Bench constituting of the same very learned Members. Judicial discipline demands that on the similar facts the Bench is bound to follow its earlier decisions. The principles of judicial discipline require that the order of the Co-ordinate Bench has to be followed.

15. I have also been nominated as Third Member in the case of Shri Baijnath Agarwal, ITA No. 133.Agr/2005 which also I disposed of with my order of even date. In that case also I have held that the assessee's case is duly covered by the decision of the Division Bench in the case of Shri Ashok Kumar Lavania in ITA No. 112.Agr/2004.

16. I also noted from the Assessment Order and the order of the CIT(A) that while scrutinizing the evidence filed by the assessee and framing the order, their minds were influenced with the other consideration that the value of the shares has tremendously increased which was abnormal and indicates that the entire transaction is managed one. The prices have increased in 15 to 16 months by 16 times. Although the rate of Rs. 72/- was quoted on 28.11.2000 in M.P Stock Exchange is apparent from page 11, para (iii) of the Assessment Order. It was further observed that in such a short period, share of no other reputed company has increased so much and the share market has also not shown such a rise. In my opinion, the share market is quite volatile and prices do fluctuate abnormally. It is seen that the shares dealt by the assessee were quoted at M.P Stock Exchange at almost similar rates at which they were sold. The assessee is only a small shareholder of the company. He is not the director of the company or of the stock exchange. Under these circumstances how he can manipulate the prices is beyond one's comprehension. It is pertinent that the issue of abnormal increase in prices of the shares has come up for consideration before the ITAT, Agra Bench in the cases of Smt. Memo Devi (ITA No. 396.Ag/2004 - reported as 7 DTR 158) wherein the Co-ordinate Bench observed as under:—

“The assessee has no relation with the directors of the company and was in no way in the capacity to affect the market price of shares. The increase in share prices by more than 25 times too cannot be the basis to assume that the transaction was bogus. Abnormal fluctuation in share prices is a normal phenomena - the learned counsel for the assessee filed a chart showing low and high prices of some quoted shares during the 52 weeks as per Economic Times dated 27.02.2007 from which it can be seen that some shares increased even by more than 100 times.”

17. In almost similar circumstances the Hon'ble Punjab & Haryana High Court in the case of Commissioner Of Income-Tax v. Anupam Kapoor (299 ITR 179) has also observed as under:—

“The Tribunal was right in rejecting the appeal of the revenue by holding that the assessee was simply a shareholder of the company. He had made the investment in a company in which he was neither a director nor was he in control of the company. The assessee had taken shares from the market, the shares were listed and the transaction took place through a registered broker of the stock exchange. There was no material before the AO, which could have lead to a conclusion that the transaction was simpliciter a device to camouflage activities to defraud the Revenue. No such presumption could be drawn by the AO, merely on surmises and conjectures.”

18. In the stock Exchange when the transaction is entered into, the assessee is not aware of about the buyer of the shares. He enters into transaction only through a share broker. Therefore, the observation of the A.O that the assessee could not identify the buyer cannot be the basis of regarding the transaction to be non-genuine one. I also noted that the A.O has been influenced with the fact that the assessee has delivered the blank transfer share certificates to the broker when the delivery of the shares were given. Since the deal has to take place between the brokers, the assessee has to give only blank transfer share certificate to the broker without mentioning the name of the buyer. There is nothing wrong in my opinion and this is a usual practice in the business. From the entire appreciation of the evidence, I noted that the assessee had acquired the shares, the purchase made on 15.07.1999 was duly declared by the assessee in earlier years which stand accepted by the Revenue. The shares were sold through stock brokers who were registered with the Stock Exchange. Shares were sold at the prices quoted at the Stock Exchange at the relevant time. The payment of sale consideration also flown from the bank account of the broker where the fund came through clearing, not in cash. The decision of the lower authorities are influenced by the general observation of the Investigation Wing that arose a suspicion turned into conclusive proof in the minds of the authorities that everybody who has sold the shares at a high price has converted his unaccounted money through accommodation entries. This approach does not have any leg to stand. Hon'ble Supreme Court in the case of Umacharan Shaw & Bros. v. CIT, 37 ITR 271 (SC) has clearly laid down that suspicion howsoever strong cannot take place of proof. From the entire appreciation of evidence, I noted that Assessing Officer has failed to establish that the assessee has introduced his own unaccounted money in the shape of alleged sale proceeds of shares. Hon'ble Supreme Court in the case of Kishan Chand Chellaram v. CIT reported in 125 ITR 713 (SC) has observed that “the amount cannot be assessed as undisclosed income of assessee in the absence of positive material brought by the Revenue to prove that the amount in fact belonged to assessee as the burden lay on the Revenue.

19. In almost similar circumstances the ITAT, Delhi ‘C’ Bench in the case of ITO v. Naveen Gupta (5 SOT 94), copy of which is placed by ld. A.R, has observed as under:—

“Nevertheless, it is also noteworthy that the A.O has failed to establish that in lieu of the aforesaid sale proceeds, the assessee has surreptitiously introduced his unaccounted money in the bank account. After having perused the entire material that is available on record, there is no averment, much less any evidence, with the Revenue in this regard. While there may be enough grounds with the AO to carry out the impugned verification exercise to test the efficacy of the transactions resulting in long term material gains in the hand of the assessee but there is no cogent material or evidence to indicate that the impugned sale proceeds reflected unaccounted income of the assessee.”

20. It was the duty of the A.O to bring on record sufficient evidences and material to prove that the documents filed by the assessee were bogus, false or fabricated and the long term capital gain shown by him was actually his income from undisclosed sources. The only material to support such conclusion of the lower authorities is either the findings of the DDI in general investigations or the twisting statements of P.K Jain & Associates which remain untested by the A.O himself. None of the judicial precedent supports the case of the Revenue. While making addition as income from undisclosed sources burden on the department is very heavy to establish that the alleged receipt was actually income of the assessee from the undisclosed sources. Jodhpur Bench of the ITAT in the case of ITO v. Smt. Kusumlata (reported in 105 TTJ 265), copy of which is placed in the compilation of the assessee, held as under:—

“10. For making addition under s. 69 of the Act, the Department is required to prove to the hilt that the impugned transactions are bogus. The burden cast on the Department under s. 69C (sic-69) of the Act is very high which is required to be discharged conclusively in this case; there is no such evidence. The assessee has purchased shares from Maheshwari Sons. These purchases are evidenced from the contract note. The payment was made by cheque. These shares were transferred in the name of the assessee. The assessee held these shares for more than one year. She sold these shares to the member of stock exchange Shri J.K Jain. Shri J.K Jain in his letter dt. 22nd Dec., 1999 has confirmed the transaction and the payment was made through cheque. The assessee has provided all the requisite evidences in support of all transactions. Simply because Shri J.K Jain could not produce his books of account or the quoted rate of shares in Delhi Stock Exchange being less or the transactions being not reported by Shri J.K Jain to the stock exchange would not make a transaction bogus. The Jaipur Stock Exchange has intimated the AO that they are only having information of the transactions between two members of the stock exchange and not otherwise. In the present case, the transaction was between a member and a non-member and therefore, such transactions were not reported in the stock exchange. Further, the credit in the bank account of Shri J.K Jain is by clearance. Therefore, the allegation of the AO that the amount was deposited in cash has no basis. The assessee has accepted having invested her funds on the advice of her father-in-law. The burden of proving a transaction is always on the person asserting it to be bogus and this burden has to be strictly discharged by adducing legal evidence of a character which would either directly prove the fact of bogusness or establish circumstances unerringly and reasonably raising an inference to that effect.”

21. I have also gone through various other decisions on similar issue under the similar facts and I noted that this Tribunal had consistently accepted the genuineness of the share transaction. Those cases are as under:—

ITO v. Sunita Gupta - ITA No. 881.Del/2004 (Delhi Bench ‘SMC’)

Dilip Gargh v. ITO - ITA No. 470.Agr/2004

Gopal Prasad Agarwal v. ACIT - ITA No. 128.Agr/2004

22. I also noted that the case of the assessee is duly covered by the decision of the Third Member in the case of Smt. Sunita Oberoi v. ITO (Agra) (TM) ITA No. 273.Agr/2004 A.Y 1995-1996 dated 07.08.2009, 30 DTR (Agra) (TM) (Trib.) 474 in which on difference of opinion on the question under the similar circumstances whether the assessee can be said to have discharged her burden to prove the genuineness of the transaction in shares of Prasidh Exports Limited and K.L.P Finance Limited or that the burden had shifted on the Revenue that can be held to have not discharged by them, the decision to uphold accepting of alleged profit on alleged share of Prasidh Exports Limited and K.L.P Finance Limited as income from other sources instead of assessee has claimed the capital gain is a correct decision or not. The Hon'ble Third Member has held as under:—

“The only reason to make the addition is that confirmation from the share brokers could not be filed by the assessee and summons issued to the said persons were not served and returned unserved and the names and addresses of the buyer to whom the ultimately shares were sold through the broker were not known to the assessee. The assessee was not in a position to compel the share broker for confirming the transaction, she being neither a director nor having large scale dealings with the brokers over the years so as to show that she was personally in a position to compel them on account of the magnitude of transaction done through them. It was her father who knew the brokers and she acted on his advice and had no contact thereafter. The reasoning that summons issued to the parties came back unserved cannot by itself be held against the assessee as whether the share broker continues the business or discontinues the same or changed the addresses or for that matter the companies whose shares were purchased and sold changed their premises or names as changed by virtue of being acquired by some other company the assessee cannot be held liable to stay in touch for all times to come. Similarly, no reasons are there to show that Shri Praveen Mittal was ever in a position to declare the transactions of an acquaintance broker as bogus transactions neither any evidence has been led nor reasons advanced to support how he could be considered to be a reliable person so as to ignore the evidences available on record i.e contract notes of sale and of the specific shares of specific rates on specific dates. Shri Praveen Mittal was the witness of the Department, the onus was therefore on the Department to produce him and make him available for cross-examination by the assessee. Similarly, the evidence that the companies were not in existence at the address available with the Department does not detract from the assessee's claim in view of the documents available on record. The discrepancy in the amounts to the expenditure of Rs. 53,356 was because of consistent statement by the assessee that the share broker made a short payment and disputed the remaining amount. The Department has thus proceeded entirely on suspicion and surmises if seen in the light of the orders of the Tribunal. The claim of the assessee in regard to the first issue is to be allowed.”

23. Thus, in view of the aforesaid discussions, the decisions of the third member, the decisions of the co-ordinate benches, totality of the facts and circumstances and evidence on record, I am of the considered view that the action of the CIT(A) was not correct in confirming the assessment of Rs. 12,19,538/- as the income from undisclosed sources as against the sale consideration of shares declared by the assessee. The CIT(A) was not justified in rejecting the claim of Long Term Capital Gain of the assessee from sale of shares. I accordingly direct the Assessing Officer to assess the income declared from the sale of shares under the head income from Long Term Capital Gain. Thus, the grounds no. 1 & 2 of assessee's appeal should be allowed. Ground no. 3 of assessee's appeal is consequential in nature, does not require any adjudication. So far the ground no. 1 of Revenue's appeal is concerned, the same should stand dismissed as infructuous in view of my decision on grounds no. 1 & 2 of assessee's appeal. Ground no. 2 in Revenue's appeal is also consequential in nature and should stand dismissed.

24. The matter will now go before the Regular Bench for deciding the appeal in accordance with the majority opinion.”

5. Respectfully following the aforesaid Third Member decision of this Tribunal, in our view, no interference is called for in the order of the CIT(A). Thus, the ground taken by the Revenue stands dismissed.

6. In the result, appeal filed by the Revenue stands dismissed.