R.K.AGRAWAL AND RAM SURAT RAM (MAURYA), J. - (1.)THE present appeal has been filed against the order dated 12th August, 2009 passed by the Income Tax Appellate Tribunal, Agra Bench, Agra. The Commissioner of Income Tax, Agra had proposed the following two questions said to be the substantial questions of law arising out of the order of the Tribunal.
"1.Whether the Hon'ble ITAT was legally correct in confirming the findings of CIT (A) holding that the sale of share transaction as genuine ignoring the facts that statement of sub broker Sh.Bharat Yadav wherein he had admitted that no actual share transaction was taken place and the bills/contract notes along with draft issued to the beneficiaries in lieu of their own money. 2.Whether the Hon'ble ITAT was legally correct in holding that the sale transactions genuine ignoring the fact that the assessee could not discharge his onus to prove the genuineness of the share transaction as per requirement of section 68 of the AIT Act, 1961."

(2.)BRIEFLY stated the facts giving rise to the present appeal are as follows: - The appeal relates to the Assessment Year 2004 -05. The assessee -opposite party is an 'individual'. He filed return of income on 31.3.2005 declaring income of Rs.34,97,761/ -. The case was selected for scrutiny and the income from long term capital gain amounting to Rs.17,54,237/ - on sale of 19000 shares of Focus Industrial Resources through broker M/s. MKM Finsec, Delhi was investigated. It transpired that the shares were purchased on 8.7.2002 for Rs.1,90,000/ - and sold on 14.8.2003 for Rs.19,54,948/ -. The resultant gain was treated by the assessee as long term capital gains. The assessing officer examined him and was of the view that as the broker had not given details and furnished documents the transaction appeared to be fake, therefore, disallowed the plea of long term capital gains and added the differential amount of Rs.17,54,237/ -as 'income from other sources'. The matter was carried in appeal before CIT(Appeals), who vide order dated 27th February, 2008 accepted the plea of the assessee and deleted the addition. The Revenue's appeal before the Tribunal has failed.
We have heard Sri Shambhu Chopra, learned Senior Standing Counsel, appearing for the Revenue and Sri Krishna Agrawal, learned counsel appearing for the respondent -assessee.

(3.)SRI Chopra submitted that the CIT (Appeals) as also the Tribunal had erred in law deleting the addition as much as the broker had not produced any documentary evidence to support the claim set up by the assessee regarding sale of the shares in question.