- (1.) A , Chandigarh, in ITA No. 829/Chd/2002, for the asst. yr. 1998 -99, proposing the following substantial questions of law : "(i) Whether the Tribunal misdirected itself in law as well as on the facts in reversing the order passed by the learned CIT(A) by recording its conclusion based on surmises and conjectures and in ignoring uncontroverted material on record ? (ii) Whether, on the facts and in the circumstances of the case, it was open to the Tribunal to reverse the order of the CIT(A) without adverting to the reasons assigned by the latter with reference to uncontroverted material on record so as to reflect the application of mind by the Tribunal ? (iii) Whether on a harmonious construction of the provisions of s. 68 of the IT Act, 1961, and s. 106 of the Evidence Act, was the Tribunal on the material on record, legally correct in reversing the order passed by the CIT(A), when the appellant assessee had discharged his burden of proving the transaction of sale and purchase of shares to be genuine ? (iv) Whether the impugned order passed by the Tribunal reversing the perfectly legal and valid order passed by the CIT (A), is perverse and result of failure to act judicially and non -application of mind -
(2.) THE assessee incurred capital loss on account of sale of gold jewellery and also had short -term capital gain of almost equal amount. The AO observed that short -term gain was not genuine inasmuch as the assessee had purchased 45,000 shares of M/s Ankur International Ltd. at varying rates from Rs. 2.06 to Rs. 3.1 per share and sold them within a short span of six -seven months at the rate varying from Rs. 47.75 paise to Rs. 55. These shares were purchased through a broker, Munish Arora & Co. and sold through another broker, M/s SK Sharma & Co. The AO was taken by surprise by the astronomical rise in share price of a company from Rs. 3 to Rs. 55 and started further enquiry.
(3.) THE AO after enquiry made addition to the income of the assessee, which was upheld by the CIT(A) as well as by the Tribunal. Learned counsel for the assessee submitted that the view taken by the Tribunal is perverse. The assessee having discharged the burden of proving the transactions of sale and purchase of the shares to be genuine, burden of proving that the said transactions were not genuine, was on the Department and in the absence of any material on record, holding the transactions to be not genuine, was not permissible.;