Subject: M/s Shobhit Goeel HUF and interest income from bank and unsecured loans given to different parties.
Referred Sections:
section 10(38)
section 68 of the I.T. Act.
section 115BBE
Section 49 of the Act
Referred Cases / Judgments
Pr.CIT vs. Prem Pal Gandhi vide ITA No.95/2017
Late Kiran Agarwal vs. ITO, ITA No.2281/Kol/2017 order dated 20.07.2018.
Shri Vinay Kumar Sogani vs. Pr.CIT, ITA No.444/JP/2018 order dated 26.07.2018.
Smt. Shikha Dhawan vs. ITO, ITA No.3035/Del/2018 order dated 27.06.2018.
Prakash Chand Bhutoria vs. ITO, ITA No.2394/Kol/2017 order dated 27.06.2018.
G.R. Kalra HUF vs. ITO, ITA No.6564/Del/2013 order dated 12.04.2017.
Sanjay Bimalchand Jain, L/H Shantidevi Bimalchand Jain vs. PCIT (ITA No.18/2017).
Chandan Gupta vs. CIT, (2015) 54 taxmann.com 10.
Balbir Chand Maini vs. CIT, (2011) 12 taxmann.com 276.
Usha Chandresh Shah vs. ITO [2014-TIOL-1459-ITAT-MUM].
Ratnakar M. Pujari vs. ITO [2016-TIOL-1746-ITAT-MUM].
Kolkata-III vs. Smt. Shreyashi Ganguli reported in [2012] (9) TMI 1113
Gautam Kumar Pincha vs. ITO, in I.T.A. No. 569/Kol/2017
M/s Classic Growers Ltd. vs. CIT [ITA No. 129 of 2012] (Cal HC)
ITO vs. Shaleen Khemani in I.T.A. No. 1945/Kol/2014
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "SMC", NEW DELHI
BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER
ITA No.2021/Del/2018
Assessment Year : 2014-15
Shoubit Goel (HUF), ITO, Ward- II(3),
C/o. Kapil Goel, Adv., Faridabad.
Vs.
F- 26/124, Sector- 7, Rohini,
Delhi.
PAN : AAVHS2861J
(Appellant) (Respondent)
ITA No.2022/Del/2018
Assessment Year : 2014-15
Shobhit Goel, ITO, Ward- II(3),
C/o. Kapil Goel, Adv., Faridabad.
Vs.
F- 26/124, Sector- 7, Rohini,
Delhi.
PAN : AICPG9748H
(Appellant) (Respondent)
ITA No.2023/Del/2018
Assessment Year : 2014-15
Omwati Aggarwal, ITO, Ward- 2(5),
C/o. Kapil Goel, Adv., Faridabad.
Vs.
F- 26/124, Sector- 7, Rohini,
Delhi.
PAN : AGTPA2312C
(Appellant) (Respondent)
ITA No.2024/Del/2018
Assessment Year : 2014-15
Mohini Goel, ITO, Ward- 1(5),
C/o. Kapil Goel, Adv., Faridabad.
Vs.
F- 26/124, Sector- 7, Rohini,
Delhi.
PAN : AYQPG2481B
(Appellant) (Respondent)
2
ITA Nos.2021 to 2028/Del/2018
ITA No.2025/Del/2018
Assessment Year : 2014-15
Naina Agarwal, ITO, Ward- II(1),
C/o. Kapil Goel, Adv., Faridabad.
Vs.
F- 26/124, Sector- 7, Rohini,
Delhi.
PAN : APFPG6588K
(Appellant) (Respondent)
ITA No.2026/Del/2018
Assessment Year : 2014-15
Shyam Sunder Bansal, ITO, Ward- II(3),
C/o. Kapil Goel, Adv., Faridabad.
Vs.
F- 26/124, Sector- 7, Rohini,
Delhi.
PAN : AIVPB4058L
(Appellant) (Respondent)
ITA No.2027/Del/2018
Assessment Year : 2014-15
Nand Kishore, ITO, Ward- II(1),
C/o. Kapil Goel, Adv., Faridabad.
Vs.
F- 26/124, Sector- 7, Rohini,
Delhi.
PAN : ACFPK0906Q
(Appellant) (Respondent)
ITA No.2028/Del/2018
Assessment Year : 2014-15
Mayank Goel, ITO, Ward- 1(5),
C/o. Kapil Goel, Adv., Faridabad.
Vs.
F- 26/124, Sector- 7, Rohini,
Delhi.
PAN : AIXPG9560C
(Appellant) (Respondent)
Assessee by : Shri Kapil Goel, Adv.
Department by : Shri Atiq Ahmed, Sr.DR
3
ITA Nos.2021 to 2028/Del/2018
Date of hearing : 31-07-2018
Date of pronouncement : 25-09-2018
ORDER
PER R. K. PANDA, AM :
The above batch of eight appeals filed by the respective assessees are
directed against the separate orders of the ld. CIT(A), Faridabad relating to
assessment year 2014-15. Since identical grounds have been taken by the
respective assessees in their appeals, therefore, these were heard together and
are being disposed of by this common order for the sake of convenience.
2. First I take up ITA No.2021/Del/2018 in the case of Shoubit Goel (HUF)
as the lead case. Facts of the case, in brief, are that the assessee (HUF) is
deriving income from trading in the name and style of M/s Shobhit Goeel HUF
and interest income from bank and unsecured loans given to different parties. It
filed its return of income on 31.12.2014 declaring total income of Rs.4,43,870/-.
The assessee, in the said return, has claimed exemption of Rs.19,14,520/- u/s
10(38) of the I.T. Act, 1961 on account of sale of securities. The case of the
assessee was selected for scrutiny by CASS on the basis of information
uploaded by the Investigation Wing that "Suspicious transaction relating to long
term capital gain on sale of shares". After examining the information and
written submissions filed by the assessee from time to time and taking into
consideration the sworn statements recorded u/s 131 before the Investigation
4
ITA Nos.2021 to 2028/Del/2018
Wing, the Assessing Officer proceeded to complete the assessment. He
discussed about the features of Penny Stocks which are as under :-
1. Most of these companies have no business at all. Few of the companies which
have some business do not have the credentials to justify the sharp rise in market
price of their share.
2. The sharp rise in market price of the shares of these entities is not supported
by fundamentals of the company or any other genuine factor.
3. The market price of shares of these companies rise to very high level within a
span of 1 year.
4. The trading volume of shares during the period, in this manipulations are
done to raise the market price is extremely thin.
5. The shares of these companies are not available for buy/sell to any person
outside the syndicate of brokers who act in connivance to ramp up the price of the
penny stock and provide exit option to the beneficiary.
6. Initial allotment of shares to beneficiaries is done through multiple routes i)
Preferential allotment of shares, ii) Offline Trading, iii) Online Trading, iv)
Merger/Amalgamation of private company with the listed penny stock (thus share
holders of private company become share holders of listed penny stock company)."
3. He referred to the investigation carried out by the Directorate of
Investigation Wing of Kolkata to unearth the organized racket of generating
bogus entries of long term capital gains which is exempt from tax. The modus
operandi adopted by the operators was to make the beneficiary buy some shares
of a pre-determined Penny Stock company controlled by them. These shares are
transferred to the beneficiary at a very nominal price mostly off-line through
preferential allotment or off-line sale to save STT. The beneficiary (an
Individual) holds the share for more than one year, the statutory period after
which LTCG is exempt u/s 10(38) of the I.T. Act. In the meantime, the
operators rig the price of the stock and gradually raise its price many times,
often 500 to 1000 times. This is done through low volume transaction indulged
5
ITA Nos.2021 to 2028/Del/2018
in by the dummies of the operator at a pre-determined price. When the price
reaches the desired level the beneficiary, who bought the shares at a nominal
price, is made to sell it to a dummy paper company of the operator. For this,
unaccounted cash is provided by the beneficiary which is routed through a few
layers of paper companies by the operator and finally is parked with the dummy
paper company that will buy the shares.
4. The Assessing Officer further observed that the price of the shares of the
penny stock companies are rigged and are raised through circular trading. This
is managed by the "operator" of the scrip. An "Operator" is a person who is
managing the overall affairs of the scheme and he is the one who contacts the
entities who wish to take entry of bogus LTCG/STCG in their books and
arranges the same through the scripts of penny stock companies. The Operator
manages many paper/bogus companies and uses them to do circular transactions
to rig the price of the shares. The shares of these penny stock companies,
although listed on exchange, are always closely held and are controlled by the
promoter of the Penny Stock Company and the Operator who is arranging for
the bogus LTCG/Loss. This is due to the fact that the general public is not
interested in these shares as these companies have no credentials and this helps
the operator to keep a control and the price movement of the shares.
5. He noted that the Securities and Exchange Board of India (SEBI) has in
the recent past, passed some orders on the issue of manipulation of share market
6
ITA Nos.2021 to 2028/Del/2018
for providing accommodation entries. He further noted that the assessee is one
such beneficiary who has taken the entry of Rs.23,18,118/- during the impugned
assessment year. From the various details furnished by the assessee during the
course of assessment proceedings including copies of computation, bank
statements and the details of long term capital gain, he noted that the assessee
purchased and sold the shares of M/s Unno Industries Limited, the details of
which are as under :-
Scrip Purchased M/s Pinnacle Vintrade Ltd. converted into M/s
Unno Industries Ltd.
No. of shares purchased 72,800 (Originally purchased 80 shares, on
20.07.2012 Bonus announced 90:1 i.e. 7200
bonus shares given. On 18.01.2013 a scheme of
arrangement has been ordered by Hon'ble High
Court of Bombay and one share of Pinnacle
Vintrade Ltd. replaced by ten shares of Unno
Industries Ltd. so that 7280 shares converted to
72,800 shares of succeeding company).
Date of purchase 20.10.2011
Amount paid Rs.1,00,000. (80 shares @ 1250/-)
Broker through whom purchased Uniglory Developers Private Limited, Mumbai.
No. of shares sold 72,800
Date of sale (NSE) 22.04.2013 (65000 shares) and 29.04.2013 (7800
shares).
Broker HDFC Securities
Amount received Rs.21,66,450/- (net after STT & Brokerage).
6. He noted that during the course of proceedings u/s 131 on 02.06.2015
before the Investigation Wing and sworn depositions of Mr. Amit Dalmia, Son
of Shri Jai Parkash Dalmia recorded during the course of survey at the business
premises of M/s Intellect Stock Broking Pvt. Ltd. at 95, Sarat Bose Road, 3rd
Floor, Kolkata 700026 he has confirmed on oath that he has provided and
7
ITA Nos.2021 to 2028/Del/2018
accommodated bogus long term capital gain entries. The Assessing Officer
referred to the various questions put to him and accordingly issued a show cause
notice to the assessee dated 05.12.2016 asking him to explain why the
exemption claimed u/s 10(38) should not be disallowed. In the said notice, he
further referred to the statements recorded in the case of seven other persons
who had stated that M/s Unno Industries Ltd. was engaged in providing bogus
long term capital gains and short term capital gains through penny stock.
7. The assessee in his reply dated 13.12.2016 submitted that the comments
given by Shri Amit Dalmia and others in the statements are wrong, fabricated
and denied. They might have given the statement to avoid their own liabilities.
The assessee requested for providing an opportunity to cross examine the
persons stated in the letter issued by the Assessing Officer. It was argued that
the documents regarding purchase, sales, STT paid and period of holding are
already given. The abstract of transfer of shares in the records of Registrar of
Companies (ROC) showing that the shares existed in assessee's name was
brought to the notice of the Assessing Officer. The provisions of section 10(38)
was also brought to the notice of the Assessing Officer and it was argued that all
the provisions of section 10(38) are duly complied with i.e. :-
1. There is transfer of long term assets as per detail given under:
- 80 shares of Pinnacle Vintrade Pvt. Ltd. were purchased on
20.10.2011.
- 7200 Bonus shares were issued on 23.03.2012.
- 72800 shares of Unno Industries allotted in lieu of shares of Pinnacle
Vintrade Pvt. Ltd. in a scheme of amalgamation on 12.02.2013.
8
ITA Nos.2021 to 2028/Del/2018
- 72800 shares of Unno Industries sold on 29.04.2013.
Since shares allotted in the scheme of amalgamation is not a transfer u/s
47(vi), period of holding was from 20.10.2011 to 27.05.2013 i.e. more than 1 year
and hence was a long term capital asset u/s 2(42A).
2. Transaction of sale of equity shares is after Finance (2) Act, 2004.
3. STT has been duly paid as per contract notes already filed.
In view of above long term capital gain has arisen and is duly exempt u/s
10(38) of I.T. Act and may not be disallowed."
8. The Assessing Officer supplied the copies of statements of Shri Amit
Dalmia recorded by the DDIT (Inv.), Kolkata to the assessee and he also asked
the assessee to attend the Office of DDIT (Inv.), Unit- 4(1), Kolkata vide letter
dated 14.12.2016 for cross examination of the person which the assessee did not
avail. Rejecting the various explanations given by the assessee and relying on
various decisions, the Assessing Officer rejected the claim of exemption u/s
10(38) and made addition of Rs.19,14,520/- to the total income of the assessee
by invoking the provisions of section 68 of the I.T. Act.
9. Similar additions have been made by the Assessing Officer in other
appeals, the details of which are as under :-
S.No. Name of the assessee ITA Nos. Addition (Rs.)
1. Shobhit Goel 2022/Del/2018 20,66,450/-
2. Omwati Aggarwal 2023/Del/2018 23,02,985/-
3. Mohini Goel 2024/Del/2018 20,88,749/-
4. Naina Agarwal 2025/Del/2018 22,64,521/-
5. Shyam Sunder Bansal 2026/Del/2018 22,97,500/-
6. Nand Kishore 2027/Del/2018 22,19,420/-
7. Mayank Goel 2028/Del/2018 20,59,711/-
10. In appeal, the ld. CIT(A) upheld the action of the Assessing Officer.
While doing so, he observed that the assessee had purchased 80 shares of M/s
9
ITA Nos.2021 to 2028/Del/2018
Pinnacle Vintrade Ltd. offline (not through recognized stock exchange) for
Rs.1,00,000/- on 20.10.2011 through broker, Uniglory Developers Pvt. Ltd.
After getting bonus shares in the ratio of 90:1 on 20.07.2012 and conversion of
one shares of M/s Pinnacle Vintrade Ltd. into 10 shares of M/s Unno Industries
Ltd. under the scheme of amalgamation by the order of Hon'ble High Court of
Bombay, the assessee received 72,800 shares of M/s Unno Industries Ltd. The
assessee sold these shares of M/s Unno Industries Ltd. for Rs.21,66,450/- on
29.04.2013 through stock exchange with payment of STT after getting these
shares dematerialized on 28.04.2013. Survey operation was carried out by the
Investigation Wing, Kolkata at the business premises of M/s Intellect Stock
Broking & Others. During the assessment proceedings, Shri Amit Dalmia has
clearly admitted that he was engaged in providing accommodation entries in the
form of share capital, share premium, unsecured loan and LTCG/STCG/STCL
through various jamakharchi companies and managed by him including M/s
Unno Industries Ltd. The scrip of M/s Unno Industries Ltd. in which the
assessee traded has been suspended in trading of securities w.e.f. January 7,
2015 by the SEBI as a "Surveillance Measures". A detailed show-cause notice
was issued to the assessee by the Assessing Officer, in response to which, the
assessee merely repeated the facts. The assessee has failed to give any concrete
evidence of his bona-fide claim during the assessment as well as the appellate
proceedings. The assessee has failed to counter the observations and facts cited
10
ITA Nos.2021 to 2028/Del/2018
by the Assessing Officer in para 9 and 10 of the assessment order. The
Assessing Officer also provided the assessee an opportunity to attend the Office
of DDIT (Inv.), Unit- 4(1), Kolkata vide letter dated 14.12.2016.
11. Aggrieved with such order of the ld. CIT(A), the assessee is in appeal
before the Tribunal by raising the following grounds :-
"1. That order passed by Ld AO dated 23/12/2016 and further order passed by ld
CIT A dated 29/01/2018 are bad in law in as much as notice u/s 143(2) on
basis of CASS is not in accordance with jurisdictional conditions stipulated
under the Act.
2. That order passed by Ld. AO dated 23/12/2016 and further order passed by ld
CIT A dated 29/01/2018 are bad in law in as much as addition of Rs.19,14,520
is made violating principles of natural justice and on basis of vague show
cause notice which was challenged and repudiated before Ld. AO for not
confronting back material referred in show cause notice issued.
3. That on the facts and in the circumstances of the case and in law, ld CIT-A
erred in sustaining the action of ld AO in making addition of Rs 19,14,520
without appreciating that mandatory CBDT guidelines 017 issuing show cause
notice has been flagrantly violated and vague show cause notice is made basis
of addition, thus resulting in invalidating the entire proceedings.
4. That on the facts and in the circumstances of the case and in law, ld CIT-A
erred in sustaining the action of ld AO in making addition of Rs 19,14,520
without appreciating that burden to prove that transaction is bogus/sham has
remained un-discharged from side of revenue.
5. That on the facts and in the circumstances of the case and in law, both ld CIT-
A and ld AO erred in making subject additions without appreciating that the
modus operandi relied extensively in impugned orders is never co-related even
remotely to the facts of the present case as there is no iota of evidence brought
on record which can display that assessee herein has inducted certain cash at
the time of sale to certain indentified broker/middleman/syndicate member
who has in turn introduced certain identified artificial paper company for
alleged parking of said cash to buy the shares sold by the assessee which
theoretical trail has remained inchoate completely nullifying the entire basis
of the addition.
6. That on the facts and in the circumstances of the case and in law, ld AO erred
in making subject additions without appreciating that law gives discretion to
the assessing officer in applying deeming fictions u/s 68 etc which discretion
has not been judiciously exercised in facts are present case as assessee has no
economic capacity and source to generate given amount of unaccounted
income. Further law requires that additions under said deeming fiction cannot
be made sans incriminating material brought on record which is completely
lacking in present case.
11
ITA Nos.2021 to 2028/Del/2018
7. That on the facts and in the circumstances of the case and in law, ld CIT-A
erred in sustaining the action of ld AO in making addition of Rs 19,14,520 /-
without appreciating that basis of findings of the lower authorities is
"suspicion" and "human probabilities" only which is never converted to
reliable and trustworthy material and entire assessment order is passed on
sole basis of "borrowed satisfaction" and without any independent application
of mind.
8. That on the facts and in the circumstances of the case and in law, ld CIT-A
erred in sustaining the action of ld AO in making addition of Rs 19,14,520 /-
without appreciating that no opportunity is given to the assessee to be
confronted with back material relied extensively in impugned orders like
investigation wing report etc and no opportunity to cross examine the
revenue's witness was given despite specific written request in this regard
made to Ld AO/CIT-A.
9. That on the facts and in the circumstances of the case and in law, ld CIT-A
erred in sustaining the action of ld AO in making addition of Rs 19,14,520/-
without appreciating that section 68 is not applicable to sale of shares as
mentioned in impugned assessment order at last page.
10. That on the facts and in the circumstances of the case and in law, ld CIT-A
erred in sustaining the action of ld AO in making addition of Rs 19,14,520
without appreciating that in identical facts in various orders relief has been
granted to assessee accepting LTCG (long term capital gains) as genuine.
1 l. That on the facts and in the circumstances of the case and in law, ld CIT-A
erred in sustaining the action of ld AO in making addition of Rs 19,14,520
without appreciating spirit of law contained in section 10(38) and section
43(5)(d) where statutory status is provided to evidences generated from stock
exchange system treating the same to be impeccable and only from finance act
2017 with prospective effective from AY 2018-2019, amendment is made in
section 10(38), prior to which such gains would remain exempt.
12. That on the facts and in the circumstances of the case and in law, ld CIT-A
erred in sustaining the action of ld AO in applying section 115BBE which is
out rightly bad in law.
13. That the appellant craves leave to add add/alter any/all grounds of appeal
before or at the time of hearing of the appeal."
12. The ld. counsel for the assessee strongly opposed the order of the ld.
CIT(A). He submitted that the assessee had requested for the cross examine of
the persons whose statements have been used by the Assessing Officer for
making the addition. However, such request was indirectly turned down by the
Assessing Officer by asking the assessee to go to office of the DDIT (Inv.),
Kolkata and cross-examine the concerned persons before the DDIT,
12
ITA Nos.2021 to 2028/Del/2018
Investigation Wing. He submitted that the Assessing Officer has invoked the
provisions of section 68 which are not applicable to the facts of the present case
because the said provisions are applicable where any sum is found credited in
the books of the assessee maintained for any previous year and the assessee
does not offer any explanation about the nature and source thereof or the
explanation offered by him is not, in the opinion of the Assessing Officer
satisfactory, the sum so credited may be charged to income-tax as the income of
the assessee of that previous year.
13. Referring to the decision of the Hon'ble Punjab & Haryana High Court in
the case of Pr.CIT vs. Prem Pal Gandhi vide ITA No.95/2017 order dated
16.02.2017, he submitted that under identical circumstances the Hon'ble High
Court in the said decision dismissed the appeal filed by the Revenue, wherein,
the Tribunal had upheld the order of the ld. CIT(A) in deleting the addition of
Rs.4,11,77,474/- made by the Assessing Officer on account of sham shares
transactions.
14. Referring to the following decisions, he submitted that under identical
circumstances the various Benches of the Tribunal have deleted such addition
made by the Assessing Officer on account of gains from penny stock :-
(i) Navneet Agarwal, Legal Heir of Late Kiran Agarwal vs. ITO, ITA
No.2281/Kol/2017 order dated 20.07.2018.
(ii) Shri Vinay Kumar Sogani vs. Pr.CIT, ITA No.444/JP/2018 order dated
26.07.2018.
(iii) Smt. Shikha Dhawan vs. ITO, ITA No.3035/Del/2018 order dated 27.06.2018.
13
ITA Nos.2021 to 2028/Del/2018
(iv) Prakash Chand Bhutoria vs. ITO, ITA No.2394/Kol/2017 order dated
27.06.2018.
(v) G.R. Kalra HUF vs. ITO, ITA No.6564/Del/2013 order dated 12.04.2017.
15. He submitted that the Assessing Officer in the instant case has not
brought on record any specific transactions or specific evidence to negate the
claim of the assessee. The principle of natural justice has been completely
violated. Nothing has been confronted to the assessee and there is no evidence
whatsoever on record to show that the assessee's own money has come back to
it in any manner. During the course of survey operation at the business
premises of M/s Intellect Stock Broking and Others, Shri Amit Dalmia, whose
statement was the basis of addition in the instant case, has not specifically taken
the name of the assessee. Further, the scrip of M/s Unno Industries Ltd. in
which the assessee traded was suspended in trading of securities w.e.f. 07th
January, 2015 only whereas the previous year in the instant case is for the
period from 01.04.2013 to 31.03.2014. He accordingly submitted that denial of
exemption u/s 10(38) and invoking of the provisions of section 68 is not
justified in the instant case especially when the shares were purchased on
28.10.2011 through brokers. The shares were sold through HDFC Securities
Ltd. and STT was paid on such sales and all these facts are not controverted by
the Revenue. Their action is only on the basis of presumption and surmises
which is not permissible in income-tax proceedings. Referring to various
decisions enclosed in the Paper Book, he submitted that under identical
14
ITA Nos.2021 to 2028/Del/2018
circumstances the various Benches of the Tribunal have deleted such addition.
Therefore, the order of the ld. CIT(A) be set-aside and the grounds raised by the
assessee be allowed.
16. The ld. DR on the other hand heavily relied on the order of the ld.
CIT(A). He submitted that it is impossible and improbable that the shares of the
company, whose business is not known to the general public, will appreciate 22
times over a period of less than 2 years. He submitted that during the course of
investigation at the business premises of M/s Intellect Stock Broking and
Others, the statement of Shri Amit Dalmia was recorded who had clearly and
categorically stated that he is engaged in providing accommodation entries in
the form of share capital, share premium, unsecured loan and long term capital
gains through various JK companies. Various other persons have also given
such type of statements. Therefore, under the facts and circumstances of the
case, the order of the ld. CIT(A), which is very elaborate, should be upheld. He
also relied on the following decisions :-
(i) Sanjay Bimalchand Jain, L/H Shantidevi Bimalchand Jain vs. PCIT (ITA
No.18/2017).
(ii) Chandan Gupta vs. CIT, (2015) 54 taxmann.com 10.
(iii) Balbir Chand Maini vs. CIT, (2011) 12 taxmann.com 276.
(iv) Usha Chandresh Shah vs. ITO [2014-TIOL-1459-ITAT-MUM].
(v) Ratnakar M. Pujari vs. ITO [2016-TIOL-1746-ITAT-MUM].
17. I have considered the rival arguments made by both the sides and perused
the material available on record. I find the assessee in the instant case has
claimed long term capital gain of Rs.19,14,520/- u/s 10(38) on account of sale
15
ITA Nos.2021 to 2028/Del/2018
of 72,800 shares of M/s Unno Industries Ltd. It may be pertinent to mention
here that the assessee had purchased 80 shares of M/s Pinnacle Vintrade Ltd. on
20.07.2012 on which bonus were announced @ 90:1 i.e. 7200 bonus shares
were given. On the basis of scheme of arrangement ordered by the Hon'ble
Bombay High Court on 18.01.2013 one share of Pinnacle Vintrade Ltd. was
replaced by 10 shares of M/s Unno Industries Ltd. Accordingly 7280 shares
were converted into 72800 shares of succeeding company. I find the Assessing
Officer rejected the claim of long term capital gain on account of sale of above
shares on the ground that during the course of survey at the business premises of
M/s Intellect Stock Broking and Others, Shri Amit Dalmia, in his statement
recorded u/s 131, had admitted that he was engaged in providing
accommodation entries. Further, according to the Assessing Officer, the scrip
of M/s Unno Industries Ltd., in which the assessee traded, has been suspended
in trading of securities w.e.f. 07th January, 2015 by SEBI as surveillance
measure. It is the allegation of the Assessing Officer that the assessee failed to
give any concrete evidence of his bona-fide claim during the assessment as well
as appellate proceedings. The opportunity of cross-examination granted by him
was also not availed by the assessee. I find the ld. CIT(A) upheld the action of
the Assessing Officer. It is the submission of the ld. counsel for the assessee
that the request of cross-examination was not effectively provided by the
Assessing Officer since the Assessing Officer asked the assessee go to Kolkata
16
ITA Nos.2021 to 2028/Del/2018
and avail the opportunity of cross-examination in the Office of the DDIT,
Investigation Wing. Further, the statements so recorded from different persons
do not give any case specific or transaction specific evidence relating to the
assessee. Nothing adverse has been given by those persons and no such adverse
material was confronted to the assessee. There is no evidence whatsoever on
record to suggest that the assessee's own money has come back to the assessee.
It is also his submission that the entire addition is based on presumptions and
surmises. Since the transactions were through banking channels and through
regular brokers of the stock exchange and when the transactions are fully
supported by documentary evidences, therefore, the same cannot be brushed
aside merely on suspicion and surmises.
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:-
17
ITA Nos.2021 to 2028/Del/2018
(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 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 at ` 11/- and sold the same in the assessment year
2008-2009 at ` 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 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.
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ITA Nos.2021 to 2028/Del/2018
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
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
available on record to rebut the claim of the assessee of exemption claimed u/s 10(38)
of the Act.
19
ITA Nos.2021 to 2028/Del/2018
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 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
20
ITA Nos.2021 to 2028/Del/2018
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 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
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ITA Nos.2021 to 2028/Del/2018
of any evidence on record, it is difficult if 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 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
22
ITA Nos.2021 to 2028/Del/2018
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
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:
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
23
ITA Nos.2021 to 2028/Del/2018
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 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 leveled by the ld AO against
24
ITA Nos.2021 to 2028/Del/2018
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 invo2lved 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 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
25
ITA Nos.2021 to 2028/Del/2018
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 reasoning, the
grounds raised by the assessees in the above appeals are also allowed.
24. In the result, all the above eight appeals filed by the respective assessees
are allowed.
Order pronounced in the open Court on this 25th September, 2018.
Sd/-
(R. K. PANDA)
ACCOUNTANT MEMBER
Dated: 25-09-2018.
Sujeet
Copy of order to: -
1) The Appellant
2) The Respondent
3) The CIT
4) The CIT(A)
5) The DR, I.T.A.T., New Delhi
By Order
//True Copy//
Assistant Registrar
ITAT, New Delhi
|
