Section 68 of Income Tax Act, 1961— capital gain— In the instant case, Assessing Officer noticed that the assessee has shown long term capital gain of Rs. 4051874/- from sale of shares and has claimed the same as exempted u/s. 10 (38) of the Act.
The Assessing Officer observed that the assessee was one among the beneficiaries in the list by accepting bogus long term capital gain entries through stock brokers trading in circular, penny stocks. According to the Assessing Officer the alleged transactions of purchase and sale of shares were not real but a sham transaction.

AO finally came to the conclusion that the assessee has entered into colourable device for avoidance of tax and the receipt of Rs. 44,65,717/- is the nothing but unexplained cash credit u/s 68 of the Act to be taxed u/s. 115 BBE of the Act and made addition of Rs. 44,65,717/- u/s. 68 of the Act and Rs. 283631/- u/s. 69C as unexplained expenditure.

Held that—we are of the considered view that the assessee has successfully discharged the onus cast upon him by provisions of section 68 of the Act as mentioned elsewhere, such discharge of onus is purely a question of fact and therefore the judicial decisions relied upon by the DR would do no good on the peculiar plethora of evidences in respect of the facts of the case in hand and hence the judicial decisions relied upon by both the sides, though perused, but not considered on the facts of the case in hand.[SMT. KARUNA GARG, SMT. KARUNA GARG, BINDU GARG, KRISHNA DEVI, HARDEV SAHAI GUPTA (GARG) VERSUS INCOME TAX OFFICER WARD - 39 (4) , WARD – 38 (3) , NEW DELHI] [2019] 16 ITCD Online (5) [ITAT DELHI]