IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B.INCOME TAX APPEAL NO.37/2009 COMMISSIONER OF INCOME TAX, UDAIPUR Vs. SHRI CHANDRESH KUMAR MAHESHWARI Date of Order : : 02.12.2010 HON’BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON’BLE MR.JUSTICE KAILASH CHANDRA JOSHI Mr.KK Bissa for the appellant Mr.Vikas Balia for the respondent. ***** The instant appeal has been preferred under Section 260-A of the Income Tax Act, 1961 questioning the legality of the order passed by the CIT (A), Udaipur affirmed by the I.T.A.T., Jodhpur Bench, Jodhpur deleting the addition of Rs.66,90,330 on account of unexplained cash credit under Section 68 and deleting the addtion of Rs.3,35,000/- on account of unaccounted commission paid to the broker to fetch the accommodation entries of long term capital gain on shares. On due consideration of the evidence on record, the CIT (A) Udaipur has deleted the aforesaid amount which has been affirmed by the I.T.A.T, Jodhpur Bench, Jodhpur. Mr.K.K. Bissa, learned counsel appearing on behalf of Revenue submitted that the deletion made by the CIT, Udaipur as affirmed by the Tribunal is bad in eye of law. He further submits in light of that the statement of the asessee respondent recorded under Section 131 of the Income Tax Act the amount was on account of unexplained cash credit and unaccounted commision was rightly computed and assessed by the Assessing Officer. [1] Mr.Vikas Balia, learned counsel for the respondent supported the orders passed by the CIT (A), Udaipur as well as the Tribunal submitting that both the courts have reached to the concurrent findings of fact. He further submits that CIT and ITAT have rightly deleted the additions on due consideration of evidence and material on record. Hence no substantial question of law arsises in the instant appeal. After hearing both the learned counsel for the parties, we are of the opinion that in view of the order passed by the Tribunal it is apparent that on due consideration of the various documents submitted on record, the orders have been passed. The ITAT, Jodhpur gave reasons in Paragraph 5 of the order which is quoted as Under:- “On careful analysis of the material made available before the Tribunal in the light of rival submissions of both parties as well as the order passed by the departmental, it is found that the Assessing Officer has come to the conclusion that the amount of Rs.66,90,330/- found credited in the bank account of the assessee as unexplained credit simply on the ground that the assessee is not able to produce the broker before him for examination and basing on the statement of the assessee recorded u/s 131 of the Act and the purchase price was paid by the assessee in 8 installments spreading over a period of two months but the assessee has produced the share certificate number 132011 Regd. Folio No.G 03019 and distinctive numbers 132501 to 1350000 issued by Cure Spects Lazer Ltd. Of Ahmedabad for acquisition of 3,50,000/- equity shares by producing the letter dated 08.09.2003 issued by the said company. These shares were sold by the assessee for consideration of Rs.70,40,365.97 through stock broker M/s Rajesh and Jhaveri and thereby earned long term capital gain of Rs.66,90,331/-. The said company cure Spects Lazer Ltd. Of Ahmedabad is a public limited company where public are substantially interested. Its shares are listed in the Ahmedabad Stock Exchange. The said company is regularly filing statutory return as required under the Companies Act to the Registrar of Companies, Ahmedabad. If really the Assessing Officer doubted the genuiness of transaction, he ought to have obtained the list of share holders coupled with the holding of the said share holders together with the share certificate numbers and folio numbers of the shares held by each share holder. This is cogent evidence, which goes to the root of the matter to find as to the genuineness of the purchase and sale of shares by the assessee, but this was not done by the Assessing Offficer though he is [2] having abundant powers under Section 131 of the IT Act. The Assessing Officer simply making assumptions and presumptions from the evidence produced by the assessee and taking ship shot extracts of the statement of the assessee, but not considering the statement as a whole. The Assessing Officer has also not written to the stock exchange of Ahmedabad as to the trading of these shares by the said broker in the Stock Exchange. In the absence of all these material facts, it can never be said that the transactions of purchase and sale conducted by assessee through broker are not genuine. Therefore, we are of the considered view that under the facts and circumstances of the case the Assessing Officer is not able to make out any material except for presumptions and assumptions to come to the conclusion that the purchase and sale of shares claimed by the assessee are not genuine. More so, in the presence of letter communicated by the broker giving the details of the shares purchased and sold on behalf of assessee, mentioning therein the commission charged by him as well as proceeds available with him for purchase of shares as well as realization of sale proceeds and crediting the same to the bank account of the assessee. Hence we find that the ld. CIT (A)’s order in deleting the additiions made by the Assessing Officer is not infirm in any way requiring any intereference. The same is hereby upheld by dismissing the appeal of the department as not meritorious.” In view of the order passed by the Tribunal, it is apparent that Tribunal has taken into consideration various documents and material on record. The question basically is of facts and the CIT(A) Udaipur has also recorded the reasons on facts while considering the factual matrix in the instant case. In the facts and circumstances of the instant case, we find that no substantial question of law has arisen in the finding of the CIT as well as ITAT, and the findings have not been shown to be perverse or unreasonable. Hence, there is no force in this income tax appeal and the same is hereby dismissed. (KAILASH CHANDRA JOSHI), J. (ARUN MISHRA), CJ mamta [3]