ORDER

Vitnal Gandhi, President.

This appeal by the assessee for assessment year 1997-98 directed against order of CIT (Appeals) confirming addition made in the hand of the assessee.

2.

The facts of the case briefly stated are that the assessee filed return disclosing income of Rs. 14,28,255 besides long-term capital gains of Rs. 25,06,535. The dispute in the present appeal relates to long-term capital gains shown by the assessee which was claimed as per following details :

Sl. No.

Name of the Company

No. of shares sold/Date of sale

Capital gain shown

1.

Chirau Finance Investment & Leasing Co. Ltd.

50,000 26-9-1996

23,80,075

2.

Nistha Finance and Investment (I) Ltd.

2,000 26-11-1996

63,230

3.

Nistha Finance & Investment (I) Ltd. relating to Master Abhayjeet Kanwar (minor son)

2,000 26-11-1996

63,230

TotaI

25,06,535

3.

The assessing officer during the course of assessment proceedings asked the assessee to furnish details of share transactions and found that sale of shares of Chirau Finance Investment & Leasing Co. (CFIL) Ltd. was carried through Stock Broker M/s. J.K. Jain & Company. The other shares of M/s. Nishtha Finance and Investment (NFI) (India) Ltd. were sold through Stock Broker M/s. Rekha and Co. The assessing officer issued summons to these Brokers. The summons to M/s. J.K. Jain and Co. were received back with the remarks. No such firm exists at the given address. In response to summons to M/s. Rekha & Co. their authorized representative appeared but did not produce any books or records relating to sales affected on behalf of the assessee. The broker claimed that books of account were lost. In order to verify further facts, the assessing officer issued summons to two companies involved in transactions, namely, M/s Chirau Finance Investment and Leasing Co. Ltd. and M/s. Nistha Finance and Investment (I) Ltd. The Income-tax Inspector (IT) was also sent to the known address of these concerns but summons were received back with remarks that no such companies existed at the given address. It also gave a similar report.

4.

The assessing officer confronted the assessee with the result of enquiries as per order sheet entries dated 22-12-1999 and required the assessee to furnish the names and addresses of the buyers and also gave documentary evidence to show that shares were actually sold by the brokers in assessees name. The assessee thereafter gave new address of M/s. J.K. Jain and Co. but showed his inability to furnish names and addresses of buyers of shares as shares were sold through the broker. However some names of buyers of shares of M/s. Chirau Finance Investment and Leasing Co. Ltd. were furnished. These are recorded in the assessment order.

5.

The assessing officer issued fresh summons on 5-1-2000 to broker M/s. J.K. Jain and Co. He also issued summons to the purchasers of shares of M/s. Chirau Finance Investment & Leasing Co. Ltd. at the address given to him. As per the assessment order, there was no compliance of summons by M/s. J.K. Jain & Co. The summons to the purchasers could not be served for the reasons that either no such person was staying at the address given or address furnished was incomplete. A fresh attempt made to serve summon on M/s. Chirau Finance Investment and Leasing Co. Ltd. on 7-1-2000 also remained unsuccessful.

6.

In the above back-drop the assessing officer confronted the assessee with the facts stated above and asked him as to why the following deposits in the name of the assessee and his minor son in bank Account with S.B.I., Nehru Place, New Delhi be not added as unexplained income of the assessee:-

Sl. No.

Amount of Deposit

Date

Bank A/c No.

1.

Rs. 4,67,040

25-10-1996

12846 (Assessee)

2.

Rs. 4,67,040

2-11-1996

-do-

3.

Rs. 5,29,200

25-11-1996

-do-

4.

Rs. 2,33,520

29-11-1996

-do-

5.

Rs. 4,08,660

9-12-1996

-do-

6.

Rs. 2,23,520

13-12-1996

-do-

7.

Rs. 2,33,520

17-12-1996

-do-

8.

Rs. 2,33,520

1-3-1997

-do-

9.

Rs. 1,16,760

4-2-1997

-do-

10.

Rs. 72,000

29-3-1997

-do-

11.

Rs. 72,000

29-3-1996

12848 (Abhayjeet)

7.

The assessment was again taken up by the assessing officer on 17-2-2000 when Shri P.K. Kundra, Advocate appeared on behalf of the assessee. After discussion, he offered to produce broker Shri J.K. Jain for examination of the assessing officer. The offer was accepted. He was also required to produce all the persons to whom 50,000 shares of Chirau Finance Investment & Leasing Ltd. were claimed to be sold by the assessee. However, the assessee did not comply with the above directions of the assessing officer, although several adjournments were granted to the assessee from time to time till 28-2-2000 as is recorded by the assessing officer at pages 4 and 5 of the assessment order.

8.

The assessing officer accordingly concluded that claim relating to sale of shares was not substantiated by the assessee with any evidence. He also referred to entries in bank Account No. 1102556 of M/s. J.K. Jain and Co. with bank of Punjab, Karol Bagh, New Delhi from which money was remitted to bank Account No. 12846 with SBI, Nehru Place of the assessee as alleged sale consideration of shares. The assessing officer also found that money to bank Account No. 1102556 (M/s. J.K. Jain and Co.) was remitted from Account No. 1102283 with the same bank maintained in the name of M/s. Shubh Investments 23/7, Old Rajender Nagar, New Delhi. On above accounts the learned assessing officer has observed, "enquiries further revealed that whenever the money was remitted to assessees bank Account with SBI, Nehru Place, it was first deposited in cash in Account No. 1102283 and from there it was transferred to assessees account through Account No. 1102556". The assessing officer further observed that payments received on account of alleged sale of shares though Cheques were from amounts deposited in cash immediately before remittance to above bank account. He has further observed that M/s. Shubh investments was shown to be a Proprietorship concern of Shri Davender Kumar who was not found at the address available in Banks record nor his introductor Shri Mukesh Kumar could be located at the address given in Banks record. The assessing officer accordingly treated M/s. Shubh Investments as a bogus concern used by assessee to route his unaccounted money. At pages 6 and 7 of his order, the learned assessing officer has furnished a chart showing deposits of money in cash in above accounts and then its remittance to the account of the assessee.

Likewise the assessing officer observed that source of deposit of Rs. 2,33,520 on 1-3-1997 and Rs. 1,16,760 on 4-2-1997 in assessees bank Account No. 12846 allegedly received by the assessee by way of sale proceeds of 6,000 shares of M/s. Chirau Finance Investment& Leasing Co. Ltd. could also not be explained. The above deposits were also treated as unexplained.

9.

The alleged sale proceeds of Rs. 72,000 each of 2,000 shares of M/s, Nistha Finance & Investment (India) Ltd. were also treated as unexplained deposits with the finding that M/s. Rekha and Co. did not produce books of account or explained the source of deposits. A similar amount was found to be deposited in cash in bank account of M/s. Rekha & Co. with Indian Overseas Bank, Karol Bagh, New Delhi when funds were remitted to the accounts of the assessee.

10.

The assessing officer also conducted inquiries from stock exchanges of Delhi, Jaipur and Kanpur which revealed that not a single transaction of shares of M/s. Chirau Investment & Leasing Co. Ltd. took place in the relevant period at Delhi and Jaipur Stock Exchanges. There was a lone reported transaction at Kanpur Stock Exchange on 24-9-1996 at the rate of Rs. 61 per share. The above transaction was held as in genuine as the balance-sheets of the said company revealed that book value of shares of the company worked out to Rs. 9.84 and Rs. 9.80 respectively as on 31-3-1996 and 31-3-1997. Net profit of company for the year ending 31-3-1996 and 31-3-1997 was meagre amount of Rs. 1,662 and Rs. 2,685. The assessing officer therefore, refused to accept that the shares of the company could be sold at the rate of Rs. 60 per share. Likewise only one transaction of sale of shares of M/s. Nistha Finance & Investment (India) Ltd. was found recorded and book value shown as on 18-12-1996 worked out to Rs. 5.15 per share. No AGM of that company was held nor any balance-sheet of company was prepared for the year ending 31-3-1996 and 31-3-1997. In the above circumstances, the assessing officer refused to believe that any prudent person would buy shares of above company at the rate of Rs. 36 per share. The transaction relating to sale of share of M/s. Nistha Finance & Investment (India) Ltd. was also disbelieved. Accordingly, the assessing officer held the total deposits Rs. 30,66,780 in bank account of assessee and his minor son was not explained and was assessees income from undisclosed sources. The above amount was added and treated as undisclosed income in the assessment order.

11.

The assessee impugned above assessment in appeal before the Commissioner (Appeals) and contended that the assessee had given names and addresses of buyers of shares of M/s. Chirau Investment & Leasing Co. Ltd. during the course of assessment proceedings.

It was further claimed that J.K. Jain and Company was available at the address furnished to the assessing officer.

With regard to objection that M/s. Chirau Investment & Leasing Co. Ltd. and M/s. Nistha Finance Investment India Ltd. were not found at the addresses given, the assessee contended that shares of M/s. Chirau Investment & Leasing Co. Ltd. were directly allotted to the assessee by the company and therefore, the existence of said company could not be doubted. It was further contended that shares of this company were officially quoted and sold at quoted price. The assessee also relied upon confirmation letters from M/s. Rekha and Co. relating to sale of shares. The learned Commissioner (Appeals) as per point vi page 14 stated that M/s. Rekha & Co. had expressed its inability to confirm the genuineness of the transaction. It was found that names of the buyers were furnished by M/s. Abhayjeet Associate, Chartered Accountant. The alleged buyers could not be found at the address given and thereafter before the Commissioner (Appeals), M/s. Amarjeet Associates denied having furnished any certificate to the assessing officer. The plea was not pursued further. In order to verify the claim, the learned Commissioner (Appeals) issued summon to M/s. J.K. Jain & Co. during the course of Appellate proceedings at C-77, Sarojini Nagar, C-Scheme, Jaipur but those summons remain uncomplied with.

The learned Commissioner (Appeals) has observed that the assessee had offered to produce broker Shri J.K. Jain before him and accordingly, dated 22-2-2000 was fixed. But in spite of the commitment the broker was not produced.

The learned Commissioner (Appeals) further observed that assessees claim that amount in question was received through account payee cheques from the bank account of the broker had no substance as source of the same remains unexplained.

The learned Commissioner (Appeals) further observed that Account No. 1102556 of M/s. J.K. Jain and Co. with bank of Punjab, Karol Bagh, New Delhi, showed that entire money was remitted from the said bank account to the bank account of the assessee relating to alleged sale of 4,400 shares of M/s. Chirau Investment & Leasing Co. Ltd. The money in account No. 1102556 was transferred from account No. 1102283 in the name of M/s. Shubh Investment where cash was deposited immediately before remittance to the brokers account.

It was further found that Shri Davender Kumar the alleged owner of M/s. Shubh Investment was not available at the address given to the bank nor his introductor Shri Mukesh Kumar was traceable at the address available in bank record. Thus M/s. Shubh Investment was held to be a bogus account utilized to route the unaccounted money of the assessee.

The learned Commissioner (Appeals) further observed that the chart given by the assessing officer at pages 6 and 7 of the assessment order clearly showed that there was a direct date-wise link with the transfer of money from the bank account of M/s. Shubh Investment (bogus concern) to the bank account of broker M/s. J.K. Jain and Co.

The learned Commissioner (Appeals) further observed that deposit of Rs. 2,33,520 and Rs. 1,16,760 in February and March 1997 representing alleged sale proceeds of 600 shares of M/s. Chirau Investment & Leasing Co. Ltd. was also not explained. She made similar observations with regard to sales made through broker M/s. Rekha & Co. and held that source of deposit of Rs. 4,40,000 in cash in bank account of above party on 29-3-1997 also remained unexplained.

12.

The learned Commissioner (Appeals) did not find any substance in the claim of the assessee that sale proceeds of the shares sold were received through brokers M/s J.K. Jain & Co. and M/s Rekha & Co. The learned Commissioner (Appeals) for the reasons already stated rejected alleged certificate of M/s. Amarjeet Associates giving names and addresses of buyers of M/s. Chirau Investment & Leasing Co. Ltd. (in short M/s. CFIL Ltd. The learned Commissioner (Appeals) confirmed the addition with the following observations:

"Before me the assessee has tried to make out a fool proof case of income of capital gain by stating that the shares of the two companies were sold to the brokers M/s. J.K. Jain & Co. and M/s. Rekha & Co. and that the sale proceeds of the shares was received by the assessee and his minor son from the brokers by account payee cheques. A certificate of M/s. Amarjeet Associates, CAs. certifying the names and addresses of the buyers of shares of M/s. CFIL Ltd. has also been given. Certain evidence has been given on the acquisition of so-called shares. A confirmation letter of the broker has also been given. The appellant has relied on certain case laws to show that merely because the broker has failed to appears in response to the summons, it is not sufficient reason for disbelieving the transaction in the sale of shares in the case of CIT v. Cargo Industrial Holdings Ltd. 244 ITR 422 (Cal).

In view of the entirety of evidence collected it is clearly a case of introduction of unaccounted income rather than a case of Capital Gain. The assessee has clearly offered to produce the stock brokers vide order sheet entry dated 7-2-2000 alongwith his books of account and bank statement but he has failed to produce the stock brokers. It is interesting to note that the assessee has filed a certificate of Amarjeet Associates & CAs., certifying the names and addresses of the so-called buyers of shares of M/s. CFIL Ltd., but none of the so-called buyers were found at the given address. It is even more interesting to note that two of the partners of M/s. Amarjeet Associates have denied to have issued any such letter/ certificate. Thus, it is clearly a case of false evidence in order to mislead investigation and to give an impression that a genuine transaction of sale of shares has been made through the stock brokers.

With regard to the financial aspects of the so-called transaction, the chart given at pages 6 and 7 of the assessment order clearly shows that the amounts have been regularly deposited in cash in the bank account of M/s. Shubh Investment which is a proprietorship concern of Shri Davender Kumar. It has already been mentioned that M/s. Shubh Investment is a bogus concern and Shri Davender Kumar is not available at the address given in the bank record. The bank account of M/s. Shubb Investment contains cash deposits which have been transferred to the bank account of the broker M/s. J.K. Jain & Co. from where the broker has issued cheques to the appellant.

With regard to the so-called sale proceeds the dates of transaction of three bank accounts almost tally. The assessee has argued that the amounts are not exactly the same. However, the amounts are enough to cover transaction to the assessee. With regard to the balance amounts, it is not the concern in these proceedings.

It has been argued that it is for the broker to explain the source i.e., the source of deposit in the bank account of M/s. J.K. Jain & Co. In this connection, I would like to point out that the assessing officer has given enough evidence to prove that the account No. 1102556 of M/s. J.K. Jain & Co. has been used as a conduit from the bank account of M/s. Shubh Investment which is a bogus concern and which contains cash deposits. Therefore, in view of the detailed evidence collected, it was for the assessee to rebut the same and prove the genuineness of the transaction. Therefore, it is simply not a case where the assessee has been asked to prove the source of source.

Looking to the overall circumstances, "I agree" with the assessing officer that the income of Rs. 30,66,780 will not be treated as income from Long Term Capital Gain and will be treated as income from undisclosed sources."

The learned Commissioner (Appeals) also upheld the levy of interest under section 234B.

The appeal filed by the assessee was dismissed.

13.

The assessee being aggrieved has brought the appeal before the appellate Tribunal.

14.

Shri T.R. Talwar, learned counsel for the assessee placed a chart of purchases and sales of shares effected by the assessee and the addition made by the assessing officer. He argued that entire sale consideration including cost price of share were added under section 68 of the Income Tax Act. The acquisition of share is duly explained in earlier years and there was no dispute on the same. Shri Talwar further submitted that shares of Chirau Finance Investment and Leasing Co. Ltd. were acquired directly from the company on 31-8-1995 by paying total consideration of Rs. 5 Lakhs. The share acquired had distinctive numbers. This clearly established that the company was a genuine company very much in existence. Even assessing officer in his order has referred to the balance sheets of company and worked out the value of shares with reference to assets possessed by the company. Therefore, observation that companies were not in existence are without any basis and unjustified. Similar was the position of other company M/s. Nishtha Finance and Investment (India) Ltd. Shri Talwar further submitted that sale of shares was fully supported by documentary evidence of vouchers issued by the brokers. The sale consideration was received through account payee cheques and this fact is not in dispute. Further shares were quoted in Stock Exchange as per evidence made available on pages 50 and 51 of the paper book. Turning to pages 50 and 51, we find that there is quotation of U.P. Stock Exchange, Kanpur dated 24-9-1996 showing sale of Chirau Finance Investment and Leasing Co. Ltd. at the rate of Rs. 58 to Rs. 60. In the same manner sale bills were issued in case of sale of shares of Nishtha Finance and Investment (India) Ltd. The amount was received through account payee cheques.

15.

Shri Talwar further submitted that the assessee cannot be held responsible for conduct of brokers through whom transactions were effected. Shares were sold in January and February 1997 whereas enquiries by Income-tax department were conducted much later. The position could have been changed over the period. Even if it is held and presumed that share brokers were indulging in questionable and shady transactions that cannot affect the genuineness of transactions carried on by the assessee particularly in the background narrated above. Shri Talwar further submitted that sale transaction of shares cannot be treated as cash credits to apply provisions of section 68 of the Income Tax Act. It was further submitted that only a part of amount credited in bank account of Shubh Investments and that of broker M/s. J.K. Jain and Co. was transferred to the accounts of the assessee as sale proceeds. The revenue people did not treat Shubh Investments or M/s J.K. Jain as benamies of the assessee. Bank accounts maintained in the above names were not treated as bank account of the assessee. Shri Talwar further submitted that assessing officer had obtained complete details of above accounts and the same was available on record of the assessing officer. The learned departmental Representative accepted above position. In order to have complete picture, we asked the parties to give us total amounts credited in bank accounts of Shubh Investment and J.K. Jain and Co. The relevant information showed that more than a crore were deposited in accounts of Shubh Investment and J.K. Jain and Co. Shri Talwar further submitted that having regard to above figures no adverse inference can be drawn against the assessee.

16.

Shri Talwar relied upon the following decisions:

"1. Smt. R. Imbavalli v. Income Tax Officer (2004) 83 TTJ (Chennai) 352, Where amount was received by appellant- assessee as part of sale consideration and it was treated as sale receipt, it could not be assessed under section 68.

2. Shri Harish Kumar v. Dy. DIT (2003) 85 ITD 366 (Hyd.), Where it was held that before making an addition under section 68, the assessing officer has to exercise his discretion judiciously. In spite of the facts pointing in the direction of genuineness and identity of S and its creditworthiness not being in doubt, the addition having been made on presumptions, surmises and suspicions and, therefore, the judgment of the Supreme Court in CIT v. Smt. P.K. Noorjahan (1999) 237 ITR 570, applied to the facts of the instant case. Since the assessee had discharged burden of proving that sale transaction in diamonds was genuine and creditworthiness of purchasers had been proved beyond doubt the assessing officer was not justified in treating transaction as not been genuine. Therefore, the addition under section 68 was to be deleted.

3. CIT v. Antartica Investment (P) Ltd. (2003) 262 ITR 493 (Del), It is pertinent to note that it was not the case of the assessing officer that any amount found credited in the bank account of the two companies had direct or indirect nexus with the assessee Co.

4. CIT v. Carbo Industrial Holdings Ltd. (2000) 244 ITR 422 (Cal.)/CIT v. Emerald Commercial Ltd. (2001) 250 ITR 539 (Cal.), Loss claimed on account of sale of shares - Purchase and sale of shares effected through share brokers - Full details of transaction and names of share brokers furnished - Payment by account payee cheques not disputed - Failure of appearance of a broker even after issue of summons would not disentitle assessee from claim of loss.

5. CIT v. Currency Investment Co. Ltd. (2000) 241 ITR 494 (Cal) Loss on account of dealing in shares - Identity of purchaser and seller not disputed - Failure to produce broker through whom shares were sold does not affect genuineness of transactions -Loss on account of share transactions deductible.

6. CIT v. Mangal Chand (2002) 255 ITR 329 (Raj) Transfer of shares -Delivery of shares certificate along with blank transfer form without registration - Amounts to actual delivery within the meaning of section

43.

7. S. Hastimal v. CIT (1963) 49 ITR 273 (Mad)

Asstt. CIT v. Mahavir Metals & Alloys (2002) 75 TTJ (Asr) 256

Mohar Singh v. Dy. CIT (2002) 77 TTJ (Agra) 218

Subhash Dal Mill v. Assistant Commissioner (2002) 124 Taxman 169 (Agra) (Mag.).

In all the authorities it was held that the assessee cannot be called upon to explain source of a source.

8. Kamal Motors v. CIT (2003) 131 Taxman 155 (Raj)

There should be identification of the creditor and he should be a person of means. When the cash creditor is an Income-tax assessee, it cannot be said that he/she is not man of means.

9. CIT v. Heeralal Changan Lal (2002) 257 ITR 281 (Raj)

Where identity of creditor was established and cash creditor had conf irmed loan. Tribunal was justified in deleting addition of such amount under section 68.

10. Assistant Commissioner v. India Tyre House (2001) 72 TTJ (Gauhati) 316

The assessee cannot be asked to do something, which is beyond its control. Assessee has got no legal power to enforce attendance of his creditors before the Assessing Officer and as such addition of the ground that he has not produced creditors cannot be sustained."

17.

The learned Departmental Representative opposed above submissions. He emphasized that neither J.K. Jain, nor other broker M/s. Rekha & Co. could be produced for verification. These people were also not available at the addresses furnished to the revenue. Shri J.K. Jain was further not produced before Commissioner (Appeals) in spite of commitment of the assessee to produce him. No books of account of these brokers or their assessment records were available for verification. The companies whose shares were sold were also not traceable at the addresses given. They were found to be not in business at the relevant time. The assessing officer made thorough investigation and was able to procure balance sheets of the companies, which showed that shares of the companies had very little value which did not co-relate with the sale price claimed to have been received by the assessee. No prudent person could have fetched the price shows to be realized by the assessee in this case. Names of purchasers of shares could not be given. Some names allegedly made available as per certificate of M/s. Amarjeet Associates was fictitious as per statement of above Chartered Accountant before the learned Commissioner (Appeals). No doubt, payment of sale considerations was received through account payee cheques but source of these payments was found to be from bank account in the name of Shubh Investment.

One Shri Devender Kumar was shown to be the owner of the account but he was not traceable at the address given. Shri Mukesh Gupta who introduced him to the bank was also not available at the address given. This information was duly put to the assessee and it was not assessees case that Devender Kumar or Mukesh Kumar were available or in existence and not fictitious entities as held by the revenue authorities. Lakhs and Lakhs were credited to the accounts of the assessee as gains and therefore, it was for the assessee to prove that entries in these accounts were genuine. The suspicious surrendering credit entries were required to be removed by the assessee. The fact that amounts were received through cheque does not advance the case of the assessee when everything is shrouded by doubts and suspicion, which clearly showed that transactions were not genuine. Solitary entries in Stock Exchange could not be treated as regular quotations and were not entitled to any weight. These were manipulated and are required to be weighed alongwith other circumstances brought on record by the revenue authority after thorough investigation. The learned Departmental Representative accordingly, submitted that impugned order of the learned Commissioner (Appeals) should be upheld.

18.

We have given careful thought to the rival submissions of both the parties, Admittedly assessee has not seen the purchasers of shares allegedly sold by him. The shares were claimed to be sold through brokers M/s. J.K. Jain & Co. and M/s. Rekha and Company. The assessee has produced notes of brokers, contract notes issued by brokers and had also relied upon the quotations of Jaipur Stock Exchange. It is also his claim that sale proceeds were realized through account payee cheques and therefore, the transactions should be treated as genuine. Non-appearance of brokers in the above circumstances was not material as per the learned counsel and in this respect reliance has been placed on the decision of Calcutta High Court in CIT v. Currency Investment Co. Ltd. (2000) 241 ITR 494, CIT v. Carbo Industrial Holdings Ltd. (2000) 244 ITR 422 and CIT v. Emerald Commercial Ltd. (2001) 250 ITR

539.

19.

It was further emphasized that transaction took place in September 1996 and therefore, after a long gap of time merely because addresses of the purchasers were not furnished, adverse inference could not be drawn against the assessee. The purchasers might have shifted. He also challenged finding of assessing officer that assessees unaccounted money was routed through account of Shubh Investment. This claim was challenged as based on surmises and conjectures. The assessee could not be called upon to establish sources of a source. The assessee did furnish complete addresses of the companies as known to him. The companies were registered with the Registrar of Companies and their shares were quoted in market. Thus genuineness of transactions were proved. Revenue authorities were wrong in treating this case as a case of cash credits.

20.

After careful consideration of the rival submissions and material on record, we are inclined to delete the addition made by not accepting sale of shares of M/s. Nishtha Finance and Investment, i.e., sum of Rs. 1,26,460 (Rs. 63,230 + Rs. 63,230) credited in bank account of the assessee. The assessee had filed confirmation from M/s. Rekha & Company relating to payment of sale proceeds through account payee cheques. Necessary documents in the shape of brokers note, contract note, sale bills etc. have also been filed. The concern M/s. Rekha & Co. was traced at the address made available to the revenue authorities. In response to summon their representative also appeared but did not produce books of account. Now on account of non-production of books of account no adverse inference, in our considered opinion, can be drawn against the assessee. The revenue authorities have not placed any adverse material on record to justify the rejection of these transaction as non-genuine. Merely because some cash deposited in account of Rekha & Co. is not explained, the entire case could not be rejected particularly when there is no finding that cash could not have been deposited by the said concern and transferred to the account of the assessee. There is no evidence filed on above point by the revenue authorities. The party also confirmed genuineness of transaction before the assessing officer without producing books of account. Therefore, in our opinion, case relating to M/s. Rekha & Co. stands on a different footing than sale of shares of M/s. Nishtha Finance. Accordingly, above addition is directed to be deleted.

21.

The case relating to addition of Rs. 29,22,780 on account of credits in Banks allegedly representing sale proceeds of 5,000 shares of M/s. Chirau Finance Investment & Leasing Co. Ltd. stands on a different footing. The shares were claimed to have been sold through M/s. J.K. Jain & Co. Shri J.K. Jain is not traceable at the address given. Even assessee could not produce him before the revenue authority in spite of assessees commitment to produce him. Name and address of so-called purchaser of shares was found to be incomplete. These persons could not be traced. M/s. Kamaljeet Associates, who was stated to have furnished the information denied before the Commissioner (Appeals) that such information was furnished by him. Book value of these shares was found to be Rs. 5 to Rs. 6 against realized value of more than Rs. 58 per share. M/s. Chirau Finance Investment & Leasing Co. Ltd. was also found to be not traceable at the address given. The company might be in existence when 5,000 shares were claimed to be purchased by the assessee on 30-1-1995 for Rs. 5 lakhs. But the company was definitely not available when enquiries were conducted by the assessing officer or when shares were claimed to have been sold. On the facts and in the circumstances of the case no reliance can be placed on isolated Stock Exchange quotations which are not regular in nature. Therefore on facts we are inclined to hold that assessee has failed to establish that amount credited represented sale consideration of shares of M/s. Chirau Finance Investment & Leasing Co. Ltd.

22.

The assessing officer added the amount invoking provisions of section 68 of the Income Tax Act. The aforesaid provision in our opinion has no application, as added amount does not represent cash credited in the books of account regularly maintained by the assessee for himself or his minor son. The deposits in the bank account of the assessee have been treated as unexplained. Provisions of section 69/69A of the Income Tax Act are attracted in this case.

23.

As per section 69 the revenue can add the value of the investments made by the assessee which he is not able to explain to the satisfaction of the assessing officer. Under section 69A, unexplained money, bullion, jewellery or other valuable articles found with the assessee could be treated as deemed income of the assessee is explanation relating to nature and source of acquisition of valuable articles is not found to be satisfactory by the assessing officer. The short question therefore, in the present case is whether assessee has offered satisfactory explanation relating to source of acquisition of money deposited in his account and that of his minor son. The assessee has explained that credit represented sale proceeds of 5,000 shares of M/s. Chirau Fin. Inv. & Leasing Co. Ltd. In support of explanation certain credit notes evidencing that shares were sold through M/s. Jain and Co. were produced. The assessee further relied upon the fact that the sale proceeds were realized through account payee cheque. The assessing officer was entitled to; rather duty bound to examine genuineness of the transaction and record his satisfaction under the above said statutory provisions. He, therefore called upon the assessee to produce Mr. J.K. Jain. When assessee failed to produce him, the assessing officer issued summons to Mr. J.K. Jain. But it was found that no such person was available at the address given. The assessee then furnished new address but no useful purpose could be served. Ultimately Shri P.K. Kundra, Advocate appeared before the assessing officer and undertook to produce the broker before the assessing officer. The aforesaid commitment was not honoured. This way genuineness of Brokers contract notes, sale bills relating to alleged sale of shares could not be verified. The assessee also allegedly furnished names of the purchaser of shares through M/s. Amarjeet Associates. Summons were issued to these purchasers but either the named person was not found at the address given or address was incomplete to serve summons. No books of account of J.K. Jain and company or its assessment records were produced to carry on any sort of verification. This way the assessing officer found big wall before him. In these circumstances, the assessing officer could not record his satisfaction relating to the genuineness of the transactions.

24.

The matter did not improve the appellate proceedings before the learned Commissioner (Appeals) who also made attempt to summon and examine J.K. Jain and Co. Here again a commitment was made to produce Shri J.K. Jain but said commitment was not honoured. No explanation is furnished as to why