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IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI
`SMC' BENCH, NEW DELHI
BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
ITA No. 4424/DEL/2018
[Assessment Year: 2014-15]
RASHMI MAHESHWARI Vs. I.T.O, WARD 58(3)
C/O RAMAKANT MAHESHWARI NEW DELHI
& CO., CAs,
A-76, Sector-71, Noida 201 301
(PAN: AKWPM8464E)
[Appellant]
Assessee by : Shri Akhilesh Kumar, Adv.
Revenue by : Shri SL Anuragi, Sr. DR.
ORDER
This appeal by the assessee is preferred against the order of the Ld.
Commissioner of Income Tax [Appeals]-19, New Delhi dated 06.4.2018
pertaining to assessment year 2014-15.
2. Brief facts of the case are that assessee has filed the return of
income on 7.10.2014 declaring income of Rs. 13,53,740/-. Assessee
claimed exemption for Rs. 9,74,605/- being long term capital gain on sale
of shares. The case of the assessee was scrutinised and order u/s.
143(3) of the Act was passed on 29.12.2016 assessing the income at Rs.
23,94,830/-. Against the assessment order, the assessee appealed before
the Ld. CIT(A), who vide his impugned order dated 6.4.2018 has
dismissed the appeal of the assessee. Aggrieved with the order of the
Ld. CIT(A), assessee appealed before the Tribunal.
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3. At the time of hearing Ld. Counsel for the Assessee stated that
lower authorities have wrongly made and confirmed the disallowance in
dispute. He submitted that the issue involved in this appeal is squarely
covered in favour of the assessee by the plethora of decisions passed by
the Hon'ble High Courts and ITAT wherein, similar views of lower
authorities on basis of probabilities and stated investigation wing
information, have been consistently overruled. Ld. counsel for the
assessee also filed the Written submissions and pleaded that similar view
may be applied here also on basis of principle of uniformity and
consistency and additions in dispute may please be deleted. In support of
his contention, he relied on the following decisions and filed the copies
thereof:-
i) Pr. CIT vs. Prempal Gandhi ITA No. 95 of 2017 dated
18.1.18 (P&H).
ii) CIT vs. Sudeep Goenka (2013) 29 taxmann.com 402
(ALL.)
iii) Shikha Dhawan vs. ITO Ward 4(2), ITA No.
3035/Del/2018 dated 27.6.2018 (ITAT, Delhi)
iv) Mohit Hora (HUF) vs. ITO Ward 2(5) ITA No.
410/D/2018 dated 12.3.18. (ITAT, Delhi).
v) Sunita Khemka vs. ACIT, CC-15, ITA No. 389/Del/2018
dated 2.8.18.
vi) Pr. CIT vs. Sh. Hitesh Gandhi ITA No. 18 of 2017 dated
16.2.2017 (P&H) (HC).
vii) Amit Rastogi HUF vs. ITO ITA no. 2128/Del/2018
dated 5.11.2018 (ITAT Del.)
viii) Arun Kumar vs. ACIT in ITA No. 457/Del/2018 dated
5.11.20189 (ITAT Delhi).
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ix) Navneet Agarwal vs. ITO ITA No. 2281/Kol/2017
dated 20.7.2018 (ITAT- Kol.).
4. On the other hand, Ld DR has strongly relied on the orders of lower
authorities and vehemently prayed for confirming the additions made. In
support of his contention, he relied upon the following case laws and filed
the copies thereof.
i) Sanjay Bimalchand Jain L/H Shantidevi Bimalchand Jain
vs. CIT (2017) ITA No. 18/2017 (Bombay High Court
(Nagpur Bench).
ii) Chandan Gupta vs. CIT (2015) 54 taxmann.com 10
(P&H) (2015) 229 Taxman 173.
iii) Balbir Chand Maini vs. CIT (2011) 12 taxmann.com 276
(P&H).
iv) Usha Chandresh Shah vs., ITO (ITAT Mumbai) (2014)
2014-TIOL-1459-ITAT Mum.
v) Ratnakar M. Pujari vs. ITO (ITAT, Mumbai) (2016)
2016-TIOL-1746-ITAT-Mum)
5. I have heard both the parties and perused the records, especially
the written submissions filed by the Assessee's counsel alongwith the
various orders of the Hon'ble High Court and the Tribunal referred by
both the parties. For the sake of convenience, the relevant paragraphs of
the findings of the Hon'ble High Courts as well as Tribunal on the issue in
dispute are reproduced as under:-
1. The Hon'ble Punjab and Haryana High Court in the case of PREM
PAL GANDHI [ITA- 95-2017 (O&M)] dated 18.01.2018 (401 ITR
253) at vide Page 3 Para 4 held as under:
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"..... The Assessing Officer in both the cases added the appreciation
to the assessee's' income on the suspicion that these were fictitious
transactions and that the appreciation actually represented the
assessee's' income from undisclosed sources. In ITA-18-2017 also
the CIT (Appeals) and the Tribunal held that the Assessing Officer
had not produced any evidence whatsoever in support of the
suspicion. On the other hand, although the appreciation is very
high, the shares were traded on the National Stock Exchange and
the payments and receipts were routed through the bank. There
was no evidence to indicate for instance that this was a closely held
company and that the trading on the National Stock Exchange was
manipulated in any manner." The Court also held the following vide
Page 3 Para 5 the following: "Question (iv) has been dealt with in
detail by the CIT (Appeals) and the Tribunal. Firstly, the documents
on which the Assessing Officer relied upon in the appeal were not
put to the assessee during the assessment proceedings. The CIT
(Appeals) nevertheless considered them in detail and found that
there was no co-relation between the amounts sought to be added
and the entries in those documents. This was on an appreciation of
facts. There is nothing to indicate that the same was perverse or
irrational. Accordingly, no question of law arises."
2. In similar case, the Hon'ble Calcutta High Court in the case of
Principal CIT vs Rungta Properties in ITA No.105 of 2016 dated 08
May, 2017 wherein it was held that "on the last point, the tribunal
held that the AO had not brought relevant material to show that the
transactions in shares of the company involved were false or
fictitious. It is the finding of the AO that
the scripts of this company was executed by a broker and the
broker was suspended for some time. It is the assessee's contention
that even though there are allegations against the broker, and for
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that reason the assessee cannot be held liable on this point, the
tribunal held that
"As a matter of fact the AO doubted the integrity of the broker and
the broker firm and also AO observed that the assessee had not
furnished any explanation in respect of any discussion of trading of
shares. The AO relied the loss of Rs.25,30,396/- only on the basis
of information submitted by stock as fictitious. The AO has also not
doubted the genuineness of the documents placed by the assessee
on record. The AO's observation and conclusion are
merely based on information. Therefore on such basis, no
disallowance can be made and accordingly we find no infirmity in
the order of the ld. CiT(A), who has rightly allowed the claim of the
assessee. This ground no.1 of the revenue is dismissed." We agree
with the reasoning of the tribunal on this point also. We do not find
any reason to interfere with the impugned order. The suggested
question, in our opinion do not raise any substantial question of
law."
3. The Hon'ble Calcutta High Court in the case of M/s. Alipine
Investments in ITA No.620 of 2008 dated 26th August, 2008
wherein the High Court held as follows :
"It appears that there was loss and the whole transactions were
supported by the contract notes, bills and were carried out through
recognized stock broker of the Calcutta Stock Exchange and all the
bills were received from the share broker through account payee
which are also filed in accordance with the assessment.
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It appears from the facts and materials placed before the Tribunal
and after examining the same, the tribunal allowed the appeal by
the assessee.
In doing so the tribunal held that the transactions cannot be
brushed aside on suspicion and surmises. However it was held that
the transactions of the shares are genuine. Therefore we do not find
that there is any reason to hold that there is no substantial question
of law held in this matter. Hence the appeal being ITA No.620 of
2008 is dismissed."
4. Hon'ble Rajasthan high court in case of Pooja Aggarwal DBIT Appeal
No. 385/2011 dated 11.09.2017 (which is mentioned below:
"12. However, counsel for the respondent has taken us to
the order of CIT(A) and also to the order of Tribunal and
contended
that in view of the finding reached, which was done through
Stock Exchange and taking into consideration the revenue
transactions, the addition made was deleted by the Tribunal
observing as under:-
"Contention of the AR is considered. One of the main reasons
for not accepting the genuineness of the transactions declared
by the appellant that at the time of survey the appellant in his
statement denied having made any transactions in shares.
However, subsequently the facts came on record that the
appellant had transacted not only in the shares which are
disputed but shares of various other companies like Satyam
Computers, HCL, IPCL, BPCL and Tata Tea etc. Regarding the
transactions in question various details like copy of contract
note regarding purchase and sale of shares of Limtex and
Konark Commerce & Ind. Ltd., assessee's account with P.K.
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Agarwal & co. share broker, company's master details from
registrar of companies, Kolkata were filed.
Copy of depository a/c or demat account with Alankrit
Assignment Ltd., a subsidiary of NSDL was also filed which
shows that the transactions were made through demat a/c.
When the relevant documents are available the fact of
transactions entered into cannot be denied simply on the
ground that in his statement the appellant denied having
made any transactions in shares. The payments and receipts
are made through a/c payee cheques and the transactions are
routed through Kolkata Stock Exchange.
There is no evidence that the cash has gone back in
appellants's account. Prima facie the transaction which are
supported by documents appear to be genuine transactions.
The AO has discussed modus operandi in some sham
transactions which were detected in the search case of B.C.
Purohit Group. The AO has also stated in the assessment
order itself while discussing the modus operandi that
accommodation entries of long term capital gain were
purchased as long term capital gain either was exempted
from tax or was taxable at a lower rate. As the appellant's
case is of short term capital gain, it does not exactly fall under
that category of accommodation transactions. Further as per
the report of DCIT, Central Circle-3 Sh. P.K. Agarwal was
found to be an entry provider as stated by Sh. Pawan Purohit
of B.C. Purihit and Co. group. The AR made submission before
the AO that the fact was not correct as in the statement of
Sh. Pawan Purohit there is no mention of Sh. P. K. Agarwal. It
was also
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submitted that there was no mention of Sh. P. K. Agarwal in
the order of Settlement Commission in the case of Sh. Sushil
Kumar Purohit. Copy of the order of settlement commission
was submitted. The AO has failed to counter the objections
raised by the appellant during the assessment proceedings.
Simply mentioning that these findings are in the appraisal
report and appraisal report is made by the Investing Wing
after considering all the material facts available on record
does not help much. The AO has failed to prove through any
independent inquiry or relying on some material that the
transactions made by the appellant through share broker P.K.
Agarwal were non-genuine or there was any adverse mention
about the transaction in question in statement of Sh. Pawan
Purohi. Simply because in the sham transactions bank a/c
were opened with HDFC bank and the appellant has also
received short term capital gain in his account with HDFC
bank does not establish that the transaction made by the
appellant were non genuine. Considering all these facts the
share transactions made through Shri P.K. Agarwal cannot be
held as non-genuine. Consequently denying the claim of short
term capital gain (6 of 6) [ ITA-385/2011] made by the
appellant
before the AO is not approved. The AO is therefore, directed
to
accept claim of short term capital gain as shown by the
appellant."
5. THE INCOME TAX APPELLATE TRIBUNAL "E", BENCH MUMBAI
(SPECIAL BENCH)
ITA No.5996/Mum/1993 (Assessment Year: 1984-85)
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M/s.GTC Industries 164 ITD Page 1
46. In situations like this case, one may fall into realm of
"preponderance of probability where there are many probable
factors, some in favour of the assessee and some may go against
the assessee. But the probable factors have to be weighed on
material facts so collected. Here in this case the material facts
strongly indicate a probability that the wholesale buyers had
collected the premium money for spending it on advertisement and
other expenses and it was their liability as per their mutual
understanding with the aseessee. Another very strong probable
factor is that the entire scheme of "twin branding and collection of
premium was so designed that assessee company need not incur
advertisement expenses and the responsibility for sales promotion
and advertisement lies wholly upon wholesale buyers who will borne
out these expenses from alleged collection of premium. The
probable factors could have gone against the assessee only if there
would have been some evidence found from several searches either
conducted by DRI or by the department that Assessee Company
was beneficiary of any such accounts. At least something would
have been unearthed from such global level investigation by two
Central Government authorities. In case of certain donations given
to a Church, originating through these benami bank accounts on the
behest of one of the employees of the assessee company, does not
implicate that GTC as a corporate entity was having the control of
these bank accounts completely. Without going into the authenticity
and veracity of the statements of the witnesses Smt. Nirmala
Sundaram, we are of the opinion that this one incident of donation
through bank accounts at the direction of one of the employee of
the Company does not implicate that the entire premium collected
all throughout the country and deposited in Benami bank accounts
actually belongs to the assessee company or the assessee company
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had direct control on these bank accounts. Ultimately, the entire
case of the revenue hinges upon the presumption that assessee is
bound to have some large share in so called secret money in the
form of premium and its circulation. However, this presumption or
suspicion how strong it may appear to be true, but needs to be
corroborated by some evidence to establish a link that GTC actually
had some kind of a share in such secret money. It is quite a trite
law that suspicion how so ever strong may be but cannot be the
basis of addition except for some material evidence on record. The
theory of ,,preponderance of probability is applied to weigh the
evidences of either side and draw a conclusion in favour of a party
which has more favourable factors in his side. The conclusions have
to be drawn on the basis of certain admitted facts and materials and
not on the basis of presumption of facts that might go against
assessee. Once nothing has been proved against the assessee with
aid of any direct material especially when various rounds of
investigation have been carried out, then nothing can be implicated
against the assessee."
7. THE INCOME TAX APPELLATE TRIBUNAL "C" BENCH : KOLKATA
[Before Hon'ble Shri J.Sudhakar Reddy, AM & Hon'ble Shri S.S.
Viswanethra Ravi, JM ]
I.T.A No. 2281/Kol/2017 Assessment Year : 2014-15
Navneet Agarwal, Legal Heir of Late Kiran Agarwal [PAN: ADGPA
9851 N ] (Appellant)
Date of Pronouncement : 20.07.2018
"10. After careful consideration of the rival submissions, perusal of the
papers on record and order of the lowers authorities below, as well as
case law cited, we hold as follows.
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11. The assessee in this case has stated the following facts and produced
the following documents as evidences:
1. The assessee had made an application for allotment of 50000 equity
shares of "Smart champs IT and Infra Ltd." and she was allotted the
share on 3rd December 2011 (copy of Application form, intimation of
allotment and share certificate Paper Book at page 8 to 10).
2. The payment for the allotment of shares was made through an account
payee cheque (copy of the bank statement evidencing the source of
money and payment made to "Smart Champs IT & Infra Ltd." for such
sharesallotted is placed in the Paper Book at page no. 11).
3. Annual return no. 20B was filed with Registrar of companies by "Smart
Champs IT & Infra Ltd" showing the assessee's name as shareholder
(copy of annual return no. 20B filed with Registrar of companies by
"Smart Champs IT & Infra Ltd. "is placed in the Paper Book at page no.
12 to 18.)
4. The assessee lodged the said shares with the Depository M/s. Eureka
Stock & Share Broking Services Ltd. with a Demat request on 11th
February, 2012. The said shares were dematerialized on 31st March, 2012
(copy of demat request slip along with the transaction statement is placed
in the paper book at page no. 19 to 21).
5. On 24.01.2013, the Hon'ble Bombay High Court approved the scheme
of amalgamation of "Smart Champs IT and Infra Ltd." with "Cressanda
Solutions Ltd." In accordance with the said scheme of amalgamation, the
assessee was allotted 50000 equity shares of "M/s. Cressanda Solutions
Ltd." The demat shares are reflected in the transaction statement of the
period from 1st November 2011 to 31st December, 2013 (A copy of the
scheme of amalgamation alongwith copy of order of the Hon'ble Bombay
High Court and a copy of the letter to this effect submitted by "Cressanda
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Solutions Ltd". to Bombay Stock Exchange is placed in the Paper Book at
page no 22 to 43.)
6. The assessee sold 50000 shares costing Rs. 500000/- through her
broker "SKP Stock Broking Pvt. Ltd" which was a SEBI registered broker
and earned a Long Term Capital Gain of Rs. 2,18,13,072/-. (Copy of the
bank statement, brokers contract note together with the delivery
instructions given to the DP and broker's confirmation is also placed in the
paper book at page no 44 to 65).
7. Copy of Form No. 10DB issued by the broker, in support of charging of
S.T.T. in respect of the transactions appearing in the ledger is placed in
the paper book at page no. 66.
8. The holding period of the said scrip is more than one year (above 500
days) through in order to get the benefit of claim of Long Term Capital
Gain the holding period is required to be 365 days.
12.The assessing officer as well as the Ld. CIT(A) have rejected these
evidences filed by the assessee by referring to "Modus Operandi" of
persons for earning long term capital gains which his exempt from income
tax. All these observations are general in nature and are applied across
the board to all the 60,000 or more assessees who fall in this category.
Specific evidences produced by the assesseeare not controverted by the
revenue authorities. No evidence collected from third parties is confronted
to the assesses. No opportunity of cross-examination of persons, on
whose statements the revenue relies to make the addition, is provided to
the assessee. The addition is made based on a report from the
investigation wing. 13. The issue for consideration before us is whether,
in such cases, the legal evidence produced by the assessee has to guide
our decision in the matter or the general observations based on
statements, probabilities, human behavior and discovery of the modus
operandi adopted in earning alleged bogus LTCG and STCG, that have
surfaced during investigations, should guide the authorities in arriving at
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a conclusion as to whether the claim in genuine or not. An alleged scam
might have taken place on LTCG etc. But it has to be established in each
case, by the party alleging so, that this assessee in question was part of
this scam. The chain of events and the live link of the assesee's action
giving her involvement in the scam should be established. The allegation
imply that cash was paid by the assessee and in return the assessee
received LTCG, which is income exempt from income tax, by way of
cheque through Banking channels. This allegation that cash had changed
hands, has to be proved with evidence, by the revenue. Evidence
gathered by the Director Investigation's office by way of statements
recorded etc. has to also be brought on record in each case, when such a
statement, evidence etc. is relied upon by the revenue to make any
additions. Opportunity of cross examination has to be provided to the
assessee, if the AO relies on any statements or third party as evidence to
make an addition. If any material or evidence is sought to be relied upon
by the AO, he has to confront the assessee with such material. The claim
of the assessee cannot be rejected based on mere conjectures unverified
by evidence under the pretentious garb of preponderance of human
probabilities and theory of human behavior by the department. 14. It is
well settled that evidence collected from third parties cannotbe used
against an assessee unless this evidence is put before him and he is given
an opportunity to controvert the evidence. In this case, the AO relies only
on a report as the basis forthe addition. The evidence based on which the
DDIT report is prepared is not brought on record by the AO nor is it put
before the assessee. The submission of the assessee that she is just an
investor and as she received some tips and she chose to invest based on
these market tips and had taken a calculated risk and had gained in the
process and that she is not partyto the scam etc., has to be controverted
by the revenue with evidence. When a person claims that she has done
these transactions in a bona fide and genuine manner and was benefitted,
one cannot reject this submission based on surmises and conjectures. As
the report of investigation wing suggests, there are more than 60,000
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beneficiaries of LTCG. Each case has to be assessed based on legal
principles of legal import laid down by the Courts of law. 15.In our view,
just the modus operandi, generalisation, preponderance of human
probabilities cannot be the only basis for rejecting the claim of the
assessee. Unless specific evidence is brought on record to controvert the
validity and correctness of the documentary evidences produced, the
same cannot be rejected by the assessee. The Hon'ble Supreme Court in
the case of Omar Salav Mohamed Sait reported in (1959) 37 ITR 151 (S
C) had held that no addition can be made on the basis of surmises,
suspicion and conjectures. In the case of CIT(Central), Kolkata vs. Daulat
Ram Rawatmull reported in 87 ITR 349, the Hon'ble Supreme Court held
that, the onus to prove that the apparent is not the real is on the party
who claims it to be so. The burden of proving a transaction to be bogus
has to be strictly discharged by adducing legal evidences, which would
directly prove the fact of bogusness or establish circumstance unerringly
and reasonably raising an interference to that effect. The Hon'ble
Supreme Court in the case of Umacharan Shah & Bros. Vs. CIT 37 ITR
271 held that suspicion however strong, cannot take the place of
evidence. In this connection we refer to the general view on the topic of
conveyance of immovable properties. The rates/sale price are at variance
with the circle rates fixed by the Registration authorities of the
Government in most cases and the general impression is that cash would
have changed hands. The courts have laid down that judicial notice of
such notorious facts cannot be taken based on generalisations. Courts of
law are bound to go by evidence.
16. We find that the assessing officer as well as the Ld. CIT(A) has been
guided by the report of the investigation wing prepared with respect to
bogus capital gains transactions. However, we do not find that the
assessing officer as well as the Ld. CIT(A), have brought out any part of
the investigation wing report in which the assessee has been investigated
and /or found to be a part of any arrangement for the purpose of
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generating bogus long term capital gains. Nothing has been brought on
record to show that the persons investigated, including entry operators or
stock brokers, have named that the assessee was in collusion with them.
In absence of such finding how is it possible to link their wrong doings
with the assessee. In fact, the investigation wing is a separate
department which has not been assigned assessment work and has been
delegated the work of only making investigation. The Act has vested
widest powers on this wing. It is the duty of the investigation wing to
conduct proper and detailed inquiry in any matter where there is
allegation of tax evasion and after making proper inquiry and collecting
proper evidences the matter should be sent to the assessment wing to
assess the income as per law. We find no such action executed by
investigation wing against the assessee. In absence of any finding
specifically against the assessee in the investigation wing report, the
assessee cannot be held to be guilty or linked to the wrong acts of the
persons investigated. In this case, in our view, the Assessing Officer at
best could have considered the investigation report as a starting point of
investigation. The report only informed the assessing officer that some
persons may have misused the script for the purpose of collusive
transaction. The Assessing Officer was duty bound to make inquiry from
all concerned parties relating to the transaction and then to collect
evidences that the transaction entered into by the assessee was also a
collusive transaction. We, however, find that the Assessing Officer has not
brought on record any evidence to prove that the transactions entered by
the assessee which are otherwise supported by proper third party
documents are collusive transactions.
17. The Hon'ble Supreme Court way back in the case of Lalchand Bhagat
Ambica Ram vs. CIT [1959] 37 ITR 288 (SC) held that assessment could
not be based on background of suspicion and in absence of any evidence
to support the same. The Hon'ble Court held:
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"Adverting to the various probabilities which weighed with the Income-tax
Officer we may observe that the notoriety for smuggling food grains and
other commodities to Bengal by country boats acquired by Sahibgunj and
the notoriety achieved by Dhulian as a great receiving centre for such
commodities were merely a background of suspicion and the appellant
could not be tarred with the same brush as every arhardar and grain
merchant who might have been indulging in smuggling operations,
without an iota of evidence in that behalf. The cancellation of the food
grain licence at Nawgachia and the prosecution of the appellant under the
Defence of India Rules was also of no consequence inasmuch as the
appellant was acquitted of the offence with which it had been charged and
its licence also was restored. The mere possibility of the appellant earning
considerable amounts in the year under consideration was a pure
conjecture on the part of the Income-tax Officer and the fact that the
appellant indulged in speculation (in Kalai account) could not legitimately
lead to the inference that the profit in a single transaction or in a chain of
transactions could exceed the amounts, involved in the high denomination
notes,---this also was a pure conjecture or surmise on the part of the
Income-tax Officer. As regards the disclosed volume of business in the
year under consideration in the head office and in branches the Income-
tax Officer indulged in speculation when he talked of the possibility of the
appellant earning a considerable sum as against which it showed a net
loss of about Rs. 45,000. The Income-tax Officer indicated the probable
source or sources from which the appellant could have earned a large
amount in the sum of Rs. 2,91,000 but the conclusion which he arrived at
in regard to the appellant having earned this large amount during the
year and which according to him represented the secreted profits of the
appellant in its business was e result of pure conjectures and surmises on
his part and had no foundation in fact and was not proved against the
appellant on the record of the proceedings. If the conclusion of the
Income-tax Officer was thus either perverse or vitiated by suspicions,
conjectures or surmises, the finding of the Tribunal was equally perverse
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or vitiated if the Tribunal took count of all these probabilities and without
any rhyme or reason and merely by a rule of thumb, as it were, came to
the conclusion that the possession of 150 high denomination notes of Rs.
1,000 each was satisfactorily explained by the appellant but not that of
the balance of 141 high denomination notes of Rs. 1,000 each".
The observations of the Hon'ble Apex Court are equally applicable to the
case of the assessee. In our view, the assessing officer having failed to
bring on record any material to prove that the transaction of the assessee
was a collusive transaction could not have rejected the evidences
submitted by the assessee. In fact, in this case nothing has been found
against the assessee with aid of any direct evidences or material against
the assessee despite the matter being investigated by various wings of
the Income Tax Department hence in our view under these circumstances
nothing can be implicated against the assessssee.
18. We now consider the various propositions of law laid down by the
Courts of law. That cross-examination is one part of the principles
ofnatural justice has been laid down in the following judgments:
a) AyaaubkhanNoorkhan Pathan vs. The State of Maharashtra and Ors.
b) Andaman Timber Industries vs.Commissioner of C. Ex., Kolkata-II
wherein it was held that:
19. On similar facts where the revenue has alleged that the assessee has
declared bogus LTCG, it was held as follows:
a) The CALCUTTAHIGH COURT inthe case of BLBCABLES
&CONDUCTORS[ITA No. 78 of2017] dated19.06.2018. The High Court
held vide Para 4.1:
b) The JAIPURITAT in the caseof VIVEKAGARWAL[ITA
No.292/JP/2017]order dated 06.04.2018 held as under vide Page 9 Para
3:
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c)The Hon'ble Punjab and Haryana High Court in the case of PREMPAL
GANDHI[ITA-95-2017(O&M)] dated18.01.2018 at vide Page 3 Para 4 held
as under:
d) The BENCH "D"OF KOLKATAITAT in the caseof GAUTAMPINCHA[ITA
No.569/Kol/2017]order dated 15.11.2017 held as under vide Page 12
Para 8.1:
e) The BENCH "D" OF KOLKATA ITAT in the case of KIRAN KOTHARI HUF
[ITA No. 443/Kol/2017] order dated 15.11.2017 held vide Para 9.3 held
as under:
f) The BENCH "A"OF KOLKATAITAT in the caseof SHALEENKHEMANI[ITA
No.1945/Kol/2014]order dated 18.10.2017 held as under vide Page 24
Para 9.3:
g) The BENCH "H"OF MUMBAIITAT in the caseof ARVINDKUMAR
JAINHUF[ITA No.4682/Mum/2014]order dated 18.09.2017 held as under
vide Page 6 Para 8:
h)The Hon'ble Punjab and Haryana High Court inthe case ofVIVEK
MEHTA[ITA No. 894 OF2010] order dated 14.11.2011 vide Page 2 Para 3
held as under:
i) The Hon'ble Jurisdictional Calcutta High Court in the case of CIT vs.
Bhagwati
Prasad Agarwal in I.T.A. No. 22/Kol/2009 dated 29.04.2009 at para 2
held as follows:
19
j) The Hon'ble Supreme Court in the case of PCIT vs. TejuRohitkumar
Kapadia order dated 04.05.2018 upheld the following proposition of law
laid down by the Hon'ble Gujrat High Court as under:
20. Applying the proposition of law as laid down in the above-mentioned
judgments to the facts of this case we are bound to consider and rely on
the evidence produced by the assessee in support of its claim and base
our decision on such evidence and not on suspicion or preponderance of
probabilities. No material was brought on record by the AO to controvert
the evidence furnished by the assessee. Under these circumstances, we
accept the evidence filed by the assessee and allow the claim that the
income in question is a bona fide Long Term Capital Gaina rising from the
sale of shares and hence exempt from income tax.
21.Under the circumstances and in view of the above discussion, we
uphold the contentions of the assessee and delete the addition in
question.
22. In the result, the appeal of the assessee is allowed."
8. IN THE INCOME TAX APPELLATE TRIBUNAL "D" BENCH:
KOLKATA I.T.A. No. 604/Kol/2018 Assessment Year: 2014-15
Jagmohan Agarwal
[Before Shri A. T. Varkey, JM & Shri M. Balaganesh, AM]
Date of Pronouncement 05.09.2018
"29. We have heard the rival submissions and perused the records. We
note that in the present case, the assessee had purchased 25000 shares
of M/s. Essar India Private Limited on 22.03.2012 from a recognized stock
broker M/s. R. L. Agarwala Capital Market Ltd. through the BSE. These
shares were held in the de-mat account of the assessee placed at pages
13 and 14 of paper book and ultimately these shares were sold through
M/s. R. L. Agarwala Capital Market Ltd. through the BSE and on such sale,
20
Security Transaction Tax was duly paid. Payments were duly received in
the bank account of the assessee. The transactions were all through a
registered broker and through BSE since the scrips of M/s. Essar India
Pvt. Ltd. was a listed company in BSE backed by a contract note (page 2
and 8&9 of the paper book) and shares were credited in the de-mat
accounts (page 13 and 14 of the paper book) and duly reflected in the
books of account. In the light of these evidences on record we are of the
opinion that the purchase and sale of shares per-se cannot be held to be
bad.
31. We note that the assessee has produced before the Ld. CIT(A) (i)
paper relating to the application for shares, (ii) allotment of the shares,
(iii) share certificates, (iv) payment by cheque, (v) necessary papers filed
before the Registrar of Companies, (vi) the name of the assessee has
been reflected as a shareholder, (vii) the proof of amalgamation of the
companies wherein the shareholding has changed, (viii) bank statement,
(ix) bank contract notes and delivery instruction to the broker to prove
the genuineness of the transactions which has been disbelieved on the
species plea that production of these documents strengthens the
suspicious transaction of bogus transaction cannot be accepted at all. The
ld CIT(A) ought not to have brushed aside these documents without
pointing out any defects and therefore the impugned action of ld CIT(A)
cannot be countenanced. Moreover the AO has referred in his assessment
order the name of M/s. Kailash Auto and M/s. Unno Industries and also
statements of Shri L.K. Agarwal and Shri Goutam Bose and Shri S.
Dokania. However these persons statements have neither been
reproduced in the assessment order nor the assessee given a copy of the
statements to rebut. So the action of both AO and ld CIT(A) referring to
statements which were purportedly recorded under oath by the
Investigation Wing cannot be made the basis for drawing adverse
inference against the assessee. Thus the action of AO to refer to certain
21
purported statements of the three individuals without establishing any
nexus with the assessee can at best mislead or create suspicion and
reference to irrelevant material itself makes the order bad. Not only that
the AO has not even bothered to give a copy of the same to the assessee
and did not give an opportunity to the assessee to cross examine those
persons itself vitiates the action of the AO and the order passed by him is
therefore fragile for violation of natural justice and null in the eyes of law
as held by the Hon'ble Supreme Court in Andaman Timber Industries Vs.
Commissioner of Central Excise in Civil Appeal No. 4228 of 2006 dated
16.11.2015. These purported statement though the contents of which
neither we are aware nor the appellant assessee, cannot be the basis for
drawing adverse inference against the assessee in the light of documents
produced before AO/CIT(A) and this Tribunal.
33. We find force in the contentions of the ld. AR that the AO and CIT(A)
was not justified in rejecting the claim of the assessee on the basis of
theory of suspicious transactions surrounding circumstance, human
conduct and preponderance of probability without bringing on record any
relevant material or legally admissible evidence against the assessee. For
the said proposition we rely on the judgment of the Special Bench of
Mumbai Bench in the case of GTC Industries Ltd. (supra). The various
facets of the contention of the AO, to rope in the assessee for drawing
adverse inferences which remain unproved based on the evidence
available on record are not reiterated for the sake of brevity. The
principles laid down in various case laws relied upon by the ld. AR are also
not reiterated for the sake of brevity. We further find that neither the
reports relied on by the AO has not been brought on record nor is there
any reference of finding of such report to impute the assessee is there on
record. The AO has merely carved out certain features/modus- operandi
of companies indulging in practices not sanctioned by law and as
mentioned in such report. However, we note that neither any
22
investigation was carried out against the assessee nor against the brokers
to whom the assessee dealt with the purchase and sale of shares in
question. Thus the AO has failed to bring on record any material
contained in the purported reports which are having so called adverse
impact on the assessee. We further note that the company under scanner
as recorded by the AO at page 4 of his order was having shareholder fund
as on 31.03.2014 of Rs.21.82 crores and was having assets worth
Rs.41.50 crores and a turn-over of Rs.15.72 crores and profit of Rs.10
lacs. Thus the allegation that these companies did not have financial
credentials at the time of purchase of shares or sale of shares is not
correct and so is perverse and therefore we do not subscribe to the said
finding.
36. We note that the ld. AR cited plethora of the case laws to bolster his
claim which are not being repeated again since it has already been
incorporated in the submissions of the ld. AR (supra) and have been duly
considered to arrive at our conclusion. The ld. DR could not bring to our
notice any case laws to support the impugned decision of the ld.
CIT(A)/AO. In the aforesaid facts and circumstances of the case, we hold
that the ld. CIT(A) was not justified in upholding the addition of sale
proceeds of the shares as undisclosed income of the assessee u/s 68 of
the Act. We therefore direct the AO to delete the addition.
37. Coming to the next addition of Rs.43,934/-, i.e., 5% of
Rs.11,49,425/-, as undisclosed expenditure u/s 69C of the Act in respect
of purported payments made to Share Brokers/Entry Operators. On this
issue since we have found the purchase and sale of shares are genuine no
addition can be made in this regard, so it is ordered to be deleted.
38. In the result, the appeal of assessee is allowed."
23
9. IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "SMC" NEW DELHI I.T.As. No.2128/Del/2018
Assessment Years: 2015-16 M/s. Amit Rastogi HUF
Date of pronouncement: 24.10.2018
"..9. Another important fact which is to be noted here is that purchase
made in the earlier year has not been disturbed and once the entire
transaction is through DEMAT account with the reputed broker without
having any link with any such entities pointed out by the learned
Assessing Officer then no adverse inference at all can be drawn against
the assessee. If the sales are evidenced through proper contract notes by
HDFC Security Ltd., sold on BSE after paying STT and duly credited in the
DEMAT account, then source of the credit has to be accepted that it is
from transaction of sale of shares held for a Long Term Capital Gain. If
purchase of shares is not doubted and these shares are not in possession
with the assessee, then there cannot be any adverse inference that it is
unexplained credit to be added u/s.68 of the Act. Thus, on the facts and
in the circumstances of the case, we hold that there was a genuine
transaction of purchase and sale of shares on which assessee has earned
Long Term Capital Gain, and therefore, such Long Term Capital Gain
cannot be taxed u/s.68. Since Long Term Capital Gain is exempted u/s.10
(38), therefore, no addition is called for.
Accordingly, appeal of the assessee is allowed."
10. IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "SMC", NEW DELHI
ITA No.2021/Del/2018
Assessment Year : 2014-15
24
Shoubit Goel (HUF),
Date of pronouncement : 25-09-2018
18. I find merit in the above argument of the ld. counsel for the assessee.
It is an admitted fact that the shares were sold through national stock
exchange and HDFC Securities was the broker, the amounts were
received after payment of STT and brokerage and the shares were sold
through banking channels. No case specific or transaction specific
information was given by the persons whose statements were recorded
and are the basis of addition in the instant case.
19. I find the Hon'ble Punjab & Haryana High Court, which is the
Jurisdictional High Court in the case of the assessee, in the case of Prem
Pal Gandhi (supra) has observed as under :-
"2. The following questions of law have been raised:-
(i) Whether on the facts and in the circumstances of the case, the Hon'ble
Income Tax Appellate Tribunal has erred in law in upholding the order of
the CIT(A) deleting the addition of Rs. 4,11,77,474/- made by the AO on
account of sham share transactions ignoring an important aspect that the
transaction of shares showing their purchase price at Rs. 11,00,000/- and
sale consideration at Rs. 4,23,45,295/- within a period of less than two
years/purchases of shares made in cash not cheque that too before
shares got dematerialized/worth of the company at the time of
purchase/sale of shares not proved-All suggest non-genuineness of the
said transaction?
(ii) Whether on the facts and in the circumstances of the case, the
Hon'ble
Income Tax Appellate Tribunal has erred in law in upholding the order of
the CIT(A) deleting the addition of Rs. 4,11,77,474/- made by the AO on
account of sham share transactions, whereas the CIT(A) himself had held
25
that the assessee had not been able to substantiate the source of
investment of Rs. 11,00,000/- in the said shares purchased during the
financial year 2005-06 and the AO was directed to reopen the case of the
assessee for the assessment year 2006-07 on this issue?
(iii) Whether the Hon'ble ITAT has erred in ignoring an important aspect
that in such cases of sham transactions of shares showing abnormal hike
in their value, where the facts themselves speak loud and clear, the AO is
justified to even draw an inference from the attendant circumstances?
(iv) Whether on the facts and in the circumstances of the case, the
Hon'ble Income Tax Appellate Tribunal has erred in law in upholding the
order of the CIT(A) deleting the addition of Rs. 12,59,000/- made by the
AO on the basis of seized document on the grounds that the Assessing
Officer has not pointed out as to how the figure of Rs. 12.59 lacs has
been worked out ignoring the fact that the assessee himself in his reply to
the AO had tried to explain the source of the receipts of Rs. 12,59,000/-
instead of challenging the working out of the said figure by the AO?
3. The first three questions of law raised in this appeal are covered
against the appellant by an order and judgement of a Division Bench of
this Court dated 16.02.2017 in ITA-18-2017 titled as The Pr.
Commissioner of Income Tax (Central), Ludhiana Vs Sh. Hitesh Gandhi,
Bhatti Colony, Chandigarh Road, Nawanshahar.
4. The issue in short is this: The assessee purchased shares of a company
during the assessment year 2006-2007 atRs. 11/- and sold the same in
the assessment year 2008-2009 at Rs. 400/- per share. In the above
case, namely, ITA-18-2017 also the assessee had purchased and sold the
shares in the same assessment years. The Assessing Officer in both the
cases added the appreciation to the assessees' income on the suspicion
that these were fictitious transactions and that the appreciation actually
represented the assessees' income from undisclosed sources. In ITA-18-
2017 also the CIT (Appeals) and the Tribunal held that the Assessing
26
Officer had not produced any evidence whatsoever in support of the
suspicion. On the other hand, although the appreciation is very high, the
shares were traded on the National Stock Exchange and the payments
and receipts were routed through the bank. There was no evidence to
indicate for instance that this was a closely held company and that the
trading on the National Stock Exchange was manipulated in any manner.
5. In these circumstances, following the judgement in ITA-18-2017, it
must be held that there is no substantial question of law in the present
appeal.
6. Question (iv) has been dealt with in detail by the CIT (Appeals) and the
Tribunal. Firstly, the documents on which the Assessing Officer relied
upon in the appeal were not put to the assessee during the assessment
proceedings. The CIT (Appeals) nevertheless considered them in detail
and found that there was no co-relation between the amounts sought to
be added and the entries in those documents. This was on an
appreciation of facts. There is nothing to indicate that the same was
perverse or irrational. Accordingly, no question of law arises.
7. In the circumstances, the appeal is dismissed."
20. I find the Co-ordinate Bench of the Tribunal in the case of Smt.
Shikha
Dhawan (supra) has deleted similar addition by observing as under :-
"8. I have heard the rival submissions and perused the material available
on record. The assessee placed sufficient documentary evidences before
the AO which are copy of the shares certificates with transfer form, copy
of debit note issued by Shreeji Broking (P) Ltd., copy of cash receipt of
Shreeji Broking (P) Ltd., copy of the account statement of the assessee in
the books of the broker, copy of ledger account of Indus Portfolio (P) Ltd.,
copy of evidence for payment of securities transaction tax and copy of the
bank statement of the assessee to show that the assessee had entered
27
into genuine transaction of purchase of share which were later on sold
through the broker on recognized stock exchange after payment of STT.
The claim of the assessee for sale of shares has been supported by the
documentary evidences which have not been rebutted by the authorities
below. Whatever inquiry was conducted in the cases of other parties and
statement recorded of several persons namely Sh. Anil Khemka, Sh.
Sanjay Vohra and Sh. Bidyoot Sarkar as referred in the assessment order
and the report of the Investigation Wing were not confronted to the
assessee and above statements were also not subject to cross-
examination on behalf of the assessee.
Therefore, such evidences cannot be read in evidence against the
assessee. The order of the SEBI was also not confronted to the assessee.
AO did not mention any such fact in assessment order. More so in those
reports and statements, the name of the assessee has not been referred
to. Ld. Counsel for the assessee, therefore, rightly contended that the
twin conditions of section 10(38) of the Act have been satisfied in the
Page
24 ITA No.3035/Del/2018 case of the assessee. The assessee has been
able to prove that she has entered into the genuine transaction of
purchase and sale of shares and the sale consideration is received from
broker through banking channel.
The brokers have not denied the transaction with the assessee. The
assessee rooted the transaction of sale of shares through recognized
stock exchange after making payment of STT. In similar circumstances,
ITAT SMC Bench, Delhi in the case of Meenu Goel vs ITO (supra) following
the decision of Jurisdictional Hon'ble P&H High Court in the case of Pr.CIT
vs Prem Pal Gandhi(supra) deleted the similar addition. Therefore, the
issue is covered in favour of the assessee by the order of ITAT, Delhi
Bench in the case of Meenu Goel vs ITO (supra) followed by judgement of
Jurisdictional P&H High Court which is binding. There is no other material
28
available on record to rebut the claim of the assessee of exemption
claimed u/s 10(38) of the Act.
9. Keeping in view of the above discussion and the material on record, in
the light of the order of the Tribunal in the case of Meenu Goel vs ITO
(supra), I set aside the orders of the authorities below and delete the
addition of Rs.19,51,357/-. The appeal of the assessee is, accordingly,
allowed.
10. In the result, the appeal of the assessee is allowed."
21. I find the Kolkata Bench of the Tribunal in the case of Prakash Chand
Bhutoria (supra) has dealt with identical issue where the long term capital
gain on account of sale of shares of M/s Unno Industries Ltd. was denied
by the Assessing Officer on the basis of Investigation Wing of Kolkata and
the ld. CIT(A) upheld the action of the Assessing Officer. On further
appeal by the assessee, the Tribunal deleted the addition made by the
Assessing Officer u/s 68 by observing as under :-
"8. A perusal of the order of the AO demonstrates that this addition was
made merely on "suspicion" and in a routine and mechanical manner. This
is clear from the fact that the AO refers to some 'Sharp Trading Compnay'
as one of the main ,manipulated company and whereas the assessee sold
scrips in Unno Industries Ltd. The AO refers to various enquiries made by
"The Directors of Income Tax" , Kolkata on project basis and that this
resulted into unearthing of a huge syndicate of entry operators and share
brokers and money lenders involved in providing of bogus accommodation
entries. The report as the so-called project and the evidence collected by
the DIT (Inv.), Kolkata etc have not been brought on record. It is well
settled that any document relied upon by the AO for making an addition
has to be supplied to the assessee and an opportunity should be provided
to the assessee to rebut the same. In this case, general statements have
29
been made by the AO and the addition is made based on such
generalizations. The assessee has not been confronted with any of the
evidence collected in the investigation done by the DIT(Inv.), Kolkata.
Evidence collected from third parties cannot be used against the assessee
without giving a copy of the same to the assessee and thereafter giving
him an opportunity to rebut the same.
9. The AO further relies on the shop increase of 31000% of the value of
shares over the period of 2 years. Though this is highly suspicious, it
cannot take the place of evidence. The Hon'ble Supreme Court has stated
that suspicion however strong cannot be the basis for making an addition.
The evidence produced by the assessee listed above proves his case and
the AO could not controvert the same by bringing on record any
evidence. The evidence said to have been collected by the DIT (INV.),
Kolkata and the report is not produced before this Bench.
10. I now discuss the case law on the subject. The Hon'ble Calcutta High
Court in the case of CIT, Kolkata-III vs. Smt. Shreyashi Ganguli reported
in [2012] (9) TMI 1113 held as follows:
"1. Whether on the facts and circumstances of the case, the order of the
Ld.Tribunal is perverse in law as well as on facts in deleting the addition
made by the Assessing Officer as unexplained cash credit under section
68 of the Income Tax Act, 1961, by ignoring the facts on record.
The ld. Tribunal after considering the material and hearing came to a fact
finding which is as follows:
The Assessing Officer has doubted the transaction since the selling broker
was subjected to SEBI's action. However, the demat account given the
statement of transactions from 01.04.2004 to 31.03.2005 i.e. relevant for
the assessment year under appeal (2005-06) are before us. There cannot
be any doubt about the transaction as has been observed by the
assessing officer. The transactions were as per norms under controlled by
30
the Securities Transaction Tax, brokerage service tax and cess, which
were already paid. They were complied with. All the transactions were
through bank. There is no iota of evidence over the above transactions as
it were through demat format. Hence, we agree with the given findings of
the ld. Commissioner of Income Tax (Appeals) in accepting the
transactions as genuine too. In view of the fact findings we cannot
reappreciate, recording is such, cannot be said to be perverse as it is not
fact finding of the ld. Tribunal alone. The commissioner of Income Tax
came to the same fact finding. Concurrent fact finding itself makes the
story of perversity, unbelievable."
The "D" Bench of the Kolkata Tribunal in the case of Gautam Kumar
Pincha vs. ITO, in I.T.A. No. 569/Kol/2017 dated 15.11.2017 at para 19
onwards held as follows:
(i) M/s Classic Growers Ltd. vs. CIT [ITA No. 129 of 2012] (Cal HC) - In
this case the ld AO found that the formal evidences produced by the
assessee to support huge losses claimed in the transactions of purchase
and sale of shares were stage managed. The Hon'ble High Court held that
the opinion of the AO that the assessee generated a sizeable amount of
loss out of prearranged transactions so as to reduce the quantum of
income liable for tax might have been the view expressed by the ld AO
but he miserably failed to substantiate that. The High Court held that the
transactions were at the prevailing price and therefore the suspicion of
the AO was misplaced and not substantiated.
(ii) CIT V. Lakshmangarh Estate & Trading Co. Limited [2013] 40
taxmann.com 439
(Cal) - In this case the Hon'ble Calcutta High Court held that on the basis
of a suspicion howsoever strong it is not possible to record any finding of
fact. As a matter of fact suspicion can never take the place of proof. It
was further held that in absence of any evidence on record, it is difficult if
31
not impossible, to hold that the transactions of buying or selling of shares
were colourable transactions or were resorted to with ulterior motive.
(iii) CIT V. Shreyashi Ganguli [ITA No. 196 of 2012] (Cal HC) - In this
case the Hon'ble Calcutta High Court held that the Assessing Officer
doubted the transactions since the selling broker was subjected to SEBI's
action. However the transactions were as per norms and suffered STT,
brokerage, service tax, and cess. There is no iota of evidence over the
transactions as it were reflected in demat account. The appeal filed by the
revenue was dismissed.
(iv) CIT V. Rungta Properties Private Limited [ITA No. 105 of 2016] (Cal
HC) In this case the Hon'ble Calcutta High Court affirmed the decision of
this tribunal, wherein, the tribunal allowed the appeal of the assessee
where the AO did not accept the explanation of the assessee in respect of
his transactions in alleged penny stocks.
The Tribunal found that the AO disallowed the loss on trading of penny
stock on the basis of some information received by him. However, it was
also found that the AO did not doubt the genuineness of the documents
submitted by the assessee. The Tribunal held that the AO's conclusions
are merely based on the information received by him. The appeal filed by
the revenue was dismissed.
(v) CIT V. Andaman Timbers Industries Limited [ITA No. 721 of 2008]
(Cal HC) In this case the Hon'ble Calcutta High Court affirmed the
decision of this Tribunal wherein the loss suffered by the Assessee was
allowed since the AO failed to bring on record any evidence to suggest
that the sale of shares by the Assessee were not genuine.
(vi) CIT V. Bhagwati Prasad Agarwal [2009- TMI-34738 (Cal HC) in ITA
No. 22 of 2009 dated 29.4.2009] - In this case the Assessee claimed
exemption of income from Long Term Capital Gains. However, the AO,
based on the information received by him from Calcutta Stock Exchange
32
found that the transactions were not recorded thereat. He therefore held
that the transactions were bogus. The Hon'ble Jurisdictional High Court,
affirmed the decision of the Tribunal wherein it was found that the chain
of transactions entered into by the assessee have been proved, accounted
for, documented and supported by evidence. It was also found that the
assessee produced the contract notes, details of demat accounts and
produced documents showing all payments were received by the assessee
through banks. On these facts, the appeal of the revenue was summarily
dismissed by High Court.
8.4. In the light of the documents stated i.e. (I to xiv) in Para 6(supra)
we find that there is absolutely no adverse material to implicate the
assessee to have entered gamut of unfounded/unwarranted allegations
leveled by the AO against the assessee, which in our considered opinion
has no legs to stand and therefore has to fall. We take note that the ld.
DR could not controvert the facts supported with material evidences
which are on record and could only rely on the orders of the AO/CIT(A).
We note that in the absence of material/evidence the allegations that the
assessee/brokers got involved in price rigging/manipulation of shares
must therefore also fail. At the cost of repetition, we note that the
assessee had furnished all relevant evidence in the form of bills, contract
notes, demat statement and bank account to prove the genuineness of
the transactions relevant to the purchase and sale of shares resulting in
long term capital gain. These evidences were neither found by the AO nor
by the ld. CIT(A) to be false or fictitious or bogus. The facts of the case
and the evidence in support of the evidence clearly support the claim of
the assessee that the transactions of the assessee were genuine and the
authorities below was not justified in rejecting the claim of the assessee
that income from LTCG is exempted u/s 10(38) of the Act. For coming to
such a conclusion we rely on the decision of the Hon'ble Calcutta High
Court in the case of M/s. Alipine Investments in ITA No.620 of 2008
33
dated 26th August, 2008 wherein the High Court held as follows :
"It appears that there was loss and the whole transactions were
supported by the contract notes, bills and were carried out through
recognized stock broker of the Calcutta Stock Exchange and all the bills
were received from the share broker through account payee which are
also filed in accordance with the assessment.
It appears from the facts and materials placed before the Tribunal and
after examining the same, the tribunal allowed the appeal by the
assessee.
In doing so the tribunal held that the transactions cannot be brushed
aside on suspicion and surmises. However it was held that the
transactions of the shares are genuine. Therefore we do not find that
there is any reason to hold that there is no substantial question of law
held in this matter. Hence the appeal being ITA No.620 of 2008 is
dismissed."
8.5. We note that the ld. AR cited plethora of the case laws to bolster his
claim which are not being repeated again since it has already been
incorporated in the submissions of the ld. AR (supra) and have been duly
considered by us to arrive at our conclusion. The ld. DR could not bring to
our notice any case laws to support the impugned decision of the ld.
CIT(A)/AO. In the aforesaid facts and circumstances of the case, we hold
that the ld. CIT(A) was not justified in upholding the addition of sale
proceeds of the shares as undisclosed income of the assessee u/s 68 of
the Act. We, therefore, direct the AO to delete the addition.
9. In the result the appeal of the assessee is allowed."
The "A" bench of the Kolkata Tribunal in the case of ITO vs. Shaleen
Khemani in I.T.A. No. 1945/Kol/2014 dated 18.10.2017 at para 9.1. to
9.4 held as follows:
34
9.1 We further find that the transaction of sale of shares by the assessee
was duly backed by all evidences including Contract Notes, Demat
Statement, Bank Account reflecting the transactions, the Stock Brokers
have confirmed the transactions, the Stock Exchange has confirmed the
transactions, the Shares have been sold on the online platform of the
Stock Exchange and each trade of sale of shares were having unique
trade no. and trade time. It is not the case that the shares which were
sold on the date mentioned in the contract note were not traded price on
that particular date.
The ld AO doubted the transactions due to the high rise in the stock price
but for that, the assessee could not be blamed and there was no evidence
to prove that the assessee or any one on his behalf was manipulating the
stock prices. The stock exchange and SEBI are the authorities appointed
by the Government of India to ensure that there is no stock rigging or
manipulation. The ld AO has not brought any evidence on record to show
that these agencies have alleged any stock manipulation against the
assessee and or the brokers and or the Company. In absence of any
evidences it cannot be said that merely because the stock price moved
sharply, the assessee was to be blamed for bogus transactions. It is also
to be seen that in this case, the shares were held by the Donors from
2003 and sold in 2010 thus there was a holding period of 7 years as per
Section 49 of the Act and it cannot be said that the assessee and the
Donors were making such plans for the last 7 years to rig the stock price
to generate bogus capital gains that too without any evidences
whatsoever.
9.2 It is also pertinent to note that the assessee and / or the stock broker
M/s P Didwania & Co and Toshith Securities P Ltd., both registered share
and stock brokers with Calcutta Stock Exchange had confirmed the
transaction and have issued legally valid contract notes under the Law
and such contract notes are available in pages 41-52 of the Paper Book.
We find that the Hon'ble Calcutta High Court in the case of Pr CIT Vs
35
Rungta Properties Private Limited ITAT No 105 of 2016 dated 8th May
2017 in a similar issue dismissed the appeal of the Department by making
the following observations:
(11) On the last point, the Tribunal held that the Assessing Officer had
not brought on records any material to show that the transactions in
shares of the company involved were false or fictitious. It is finding of the
assessing officer that the scrips of this company was executed by a broker
through cross deals and the broker was suspended for some time. It is
assessee's contention on the other that even though there are allegations
against the broker, but for that reason alone the assessee cannot be held
liable. On this point the Tribunal held -
"As a matter of fact the AO doubted the integrity of the broker or the
manner in which the broker operation as per the statement of one of
the directors of the broker firm and also AO observed that assessee
had not furnished any explanation in respect of the intention of showing
trading of shares only in three penny stocks. AO relied the loss of
Rs.25,30,396/- only on the basis of information submitted by the Stock
fictitious. AO has also not doubted the genuineness of the documents
placed on record by the assessee. AO's observation and conclusion are
merely based on the information representative.
Therefore on such basis no disallowance can be made and accordingly we
find no infirmity in the order of ld. CIT(A), who has rightly allowed the
claim of assessee. Thus ground No. 1 of the revenue is dismissed."
We agree with the reasoning of the Tribunal on this point also. We do not
find any reason to interfere with the impugned order. The suggested
questions, in our opinion do not raise any substantial question of law.
9.3. We therefore hold that there is absolutely no adverse material to
implicate the assessee to the entire gamut of unwarranted allegations
36
leveled by the ld AO against the assessee, which in our considered
opinion, has no legs to stand in the eyes of law.
We find that the ld DR could not controvert the arguments of the ld AR
with contrary material evidences on record and merely relied on the
orders of the ld AO. We find that the allegation that the assessee and / or
Brokers getting involved in price rigging of SOICL shares fails. It is also a
matter of record that the assessee furnished all evidences in the form of
bills, contract notes, demat statements and the bank accounts to prove
the genuineness of the transactions relating to purchase and sale of
shares resulting in LTCG. These evidences were neither found by the ld
AO to be false or fabricated. The facts of the case and the evidences in
support of the assessee's case clearly support the claim of the assessee
that the transactions of the assessee were bonafide and genuine and
therefore the ld AO was not justified in rejecting the assessee's claim of
exemption under section 10(38) of the Act. We also find that the ld CITA
rightly relied on the decision of the Hon'ble High Court at Calcutta in the
case of ALPINE INVESTMENTS in ITA No. 620 of 2008 dated 26th August
2008 wherein the Hon'ble Court held as follows:
"It appears that the share loss and the whole transactions were supported
by contract notes, bills and were carried out through recognized
stockbroker of the Calcutta Stock Exchange and all the payments made to
the stockbroker and all the payments received from stockbroker through
account payee instruments, which were also filed in accordance with the
assessment.
It appears from the facts and materials placed before the Tribunal and
after examining the same the Tribunal came to the conclusion and
allowed the appeal filed by the assessee. In doing so, the Tribunal held
that the transaction fully supported by the documentary evidences could
not be brushed aside on suspicion and surmises. However, it was held
that the transactions of share are genuine. Therefore, we do not find that
37
there is any reason to hold that there is any substantial question of law
involved in this matter. Hence, the appeal being ITA No.620 of 2008 is
dismissed."
9.4. We also find that the various other case laws of Hon'ble Jurisdictional
High Court and other case laws also relied upon by the ld AR and findings
given thereon would apply to the facts of the instant case. The ld DR was
not able to furnish any contrary cases to this effect. Hence we hold that
the ld AO was not justified in assessing the sale proceeds of shares of
SOICL as undisclosed income of the assessee u/s 68 of the Act and
therefore we uphold the order of the ld CITA and dismiss the appeal of
the revenue. Accordingly the grounds raised by the revenue are
dismissed."
Applying the proposition of law laid down in all the above referred cases,
the facts of this case, I find force in the submission of the assessee and
there are backed by evidence. I also find that the revenue has not based
its finding on in any evidence. In view of the above discussion the
addition made u/s 68 of the Act is hereby deleted."
22. Since the facts of the instant case are identical to the facts of the
cases decided by the Hon'ble Punjab & Haryana High Court and the Delhi
and Kolkata Benches of the Tribunal, therefore, respectfully following the
above decisions, I set-aside the order of the ld. CIT(A) and direct the
Assessing Officer to delete the addition made u/s 68 of the I.T. Act. So far
as the decisions relied on by ld. DR are concerned, they are
distinguishable and not applicable to the facts of the present case. The
grounds raised by the assessee in the impugned appeal are accordingly
allowed.
23. The grounds raised by the assessees in other appeals i.e. in ITA
No.2022 to 2028/Del/2018 are identical to the facts of the present case. I
have already decided the issue in favour of the assessee. Following similar
38
reasoning, the grounds raised by the assessees in the above appeals are
also allowed."
11. The Hon'ble Delhi Bench of the Tribunal in the case of ITO vs
Jatin Investment Pvt. Ltd. In ITA No.4325 & 4326/Del/2009 order
dated 27.05.2015 held as follows :-
"11. In his rival submissions, the Ld. Counsel for the assessee reiterated
the submissions made before the authorities below and further submitted
that the assessee was having investment in shares etc. which were duly
shown on the asset aside of the balance sheet, out of those investments
some were sold and few new were purchased and if there was any gain
on the sale the same was offered for taxation. It was further submitted
that in earlier year 13 4325 & 4326/ Del/2009 under similar
circumstances, the case was reopened u/s 147 of the Act and the addition
made by the AO was deleted by the I.T.A.T. It was further submitted that
the assessee sold the shares which were earlier purchased in different
years and duly shown in the balance sheet of the respective years and
that the assessee had shown the sale proceeds in the books of accounts,
the investments were reduced after making the sales. It was contended
that there was no obligation under the law that the assessee was required
to prove the source of payee. It was further contended that the AO had
not rejected the books of accounts and the purchases were duly accepted
so there was no reason to doubt the sales. It was submitted that the case
of the assessee is squarely covered by the decision of this bench of the
Tribunal in the case of ITO vs. M/s Vishal Holding and Capital Pvt. Ltd. in
ITA no. 1788/Del/2009 order dated 17.07.2009 which has been upheld by
the Hon'ble Jurisdictional High Court as reported in (2011) 200 Taxman
186 (Delhi). It was further, submitted that the issue is also covered by
the order of the ITAT, Delhi Bench in the case of ITO vs. Goodwill Cresec
Pvt. Ltd. in ITA No. 4151/Del./2010 order dated 25.01.2012. Reliance was
also placed on the following cases laws :- 14 4325 & 4326/ Del/2009 "1.
CIT vs. Sh. Udit Narain Aggarwal, ITA No. 560 of 2009, dt. 12.12.2012 2.
39
CIT vs. Sudeep Goenka, ITA No. 468 of 2009, dt. 3.01.2013. 3. CIT vs.
Anirudh Narain Aggarwal, ITA No. 195 of 2010, dt. 16.01.2013." It was
pointed out that the same issue has been decided by the I.T.A.T. in
assessee's own case in I.T.A.T. No. 1584/Del./2009 for the A.Y. 2002-03
vide order dated 13.11.2009, in assessee's favour (copy of the order was
furnished which is placed on record) 12. We have considered the
submissions of both the parties and gone through the material available
on the record. In the present case, it is noticed that the assessee
purchased the shares in earlier years which were shown as investment in
the books of accounts and reflected in the "Asset Side" of the "Balance
Sheet", out of those investments (copy which is placed at page no. 23
and 24 of the assessee's paper book), the assessee sold certain
investments and accounted for the profit / loss and offered the same for
taxation. In the present case, the amount in question was neither a
loan or the deposit , it was also not on account of share
application money, the said amount was on account of sale of
investment therefore the provisions of Section 68 of the Act were
not applicable and the AO was not justified in making the addition.
In our opinion, the Ld. CIT(A) rightly deleted the addition made by
the AO. 13. On a similar issue the Hon'ble Jurisdictional High Court in the
case of CIT vs. Vishal Holding and Capital Pvt. Ltd. vide order dated 9th
August, 2010 upheld the order dated 30.7.2009 of the ITAT in ITA no.
1788/Del/2007 for the assessment year 2000-2001 wherein the order of
the Ld. CIT(A) making the similar deletion was upheld by observing in
para 6 as under :- "We are of the view that the assessee had produced
copies of accounts, bills and contract notes issued by M/s. MKM Finsec
Pvt. Ltd., and had been maintaining books of account as per Companies
Act. The assessee had also demonstrated the purchase and sale of shares
over a period of time as seen from the balance sheet's. In our opinion,
the Assessing Officer has simply acted on the information received from
the Investigation Wing without verifying the details furnished by the
assessee. The assessee has also produced best possible evidence to
40
support its claim. Consequently the addition made by the Assessing
Officer cannot be sustained." 14. We, therefore, considering the totality of
the facts do not see any valid ground to interfere with the findings of the
Ld. CIT(A). Accordingly, we do not see any merit in this appeal of the
department. In ITA no. 4326/Del./2009 of the assessment year 2004- 05
identical issue having similar facts is involved, the only difference is in the
amount of addition which was deleted by the Ld. CIT(A). Therefore, our
findings given in former part of this order, in respect of 16 4325 & 4326/
Del/2009 assessment year 2003-04, shall apply mutatis mutandis for
assessment year 2004-05. 14. We, therefore, considering the totality of
the facts do not see any valid ground to interfere with the findings of the
Ld. CIT(A). Accordingly, we do not see any merit in this appeal of the
department. In ITA no. 4326/Del./2009 of the assessment year 2004- 05
identical issue having similar facts is involved, the only difference is in the
amount of addition which was deleted by the Ld. CIT(A). Therefore, our
findings given in former part of this order, in respect of 16 4325 & 4326/
Del/2009 assessment year 2003-04, shall apply mutatis mutandis for
assessment year 2004-05."
12. The Hon'ble Delhi High Court in the case of Principal C.I.T. vs
Jatin Investment Pvt. Ltd. [2017 ] TMI 342 (Delhi) held as follows
:- "4. The ITAT agreed with the conclusions of the CIT (A) upon its
independent examination of the record. It also discounted the Revenue's
submissions that the investment shown in the book of accounts and
reflected as assets in the side of the balance sheet, should have been
properly treated and that in the absence of such treatment .Section 68
applies. The ITAT rejected this contention and held - based upon the
principles enunciated in CIT v. Vishaf Holding & Capital Pvt. Ltd. (order of
this Court dated 9.8.2010) that the invocation of Section'68 in the
circumstances is unwarranted. 5. Learned counsel for the Revenue
reiterated the grounds cited in some of the contentions made before the
ITAT. Learned counsel especially emphasized on the submission that the
41
incorrect reflection of the receipts in the balance sheet belied the true
nature of the receipts as a justification for the application of Section 68 .
6. The ITAT in our opinion quite correctly appreciated the law and its
application by the first appellate authority, i.e., CIT (A). Having regard to
the facts and the nature of the analysis based upon the decisions of this
Court, as well as the reliance on various decisions with respect to the true
nature of Section 68, we are of the opinion that no question of law arises;
the appeals are accordingly dismissed"
13. Hon'ble Jurisdictional High Court in the case cited as CIT Vs
Vishal Holding and Capital Pvt. Ltd. vide order dated 9th August,
2010 upheld the order dated 30.07.2009 of the ITAT in I.T.A. No.
1788/Del/2007 for the Assessment Year 2000-2001 wherein the order of
the Ld. CIT(A) making the deletion was upheld by observing in para 6 as
under:- "We are of the view that the assessee had produced copies ) of
accounts, bills and contract notes issued by M/s. MKM Finsec Pvt. Ltd.,
and had been maintaining books of account as per Companies Act. The
assessee had also demonstrated the purchase and sale of shares over a
period of time as seen from the balance sheet. In our opinion, the
Assessing Officer has simply acted on the information received from the
Investigation Wing without verifying the details furnished by the
assessee. The assessee has also produced best possible evidence to
support its claim. Consequently the addition made by the Assessing
Officer cannot be sustained."
8. Keeping in view of the facts and circumstances of the present case
as well as the case laws relied upon by the Ld. Counsel for the assessee, I
am of the considered view that the issue in dispute has already been
adjudicated and decided in favour of the assessee by the various
judgments / orders mentioned in the preceding paragraphs. However,
the case laws relied upon by the Ld. DR are distinguished on the facts
and not useful to support the impugned order. Therefore, the arguments
advanced by the Ld. DR are rejected. Respectfully, following the
42
judgments/ orders mentioned in the preceding paragraphs, the addition in
dispute is deleted and the grounds raised by the assessee are allowed.
9. In the result, the Appeal of the assessee stands allowed.
The order is pronounced on 28th November, 2018.
Sd/-
[H.S. SIDHU]
JUDICIAL MEMBER
Dated: 28th November, 2018
SR BHATNAGAR
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(A) Asst. Registrar,
5. DR ITAT, New Delhi
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