Income Tax Appellate Tribunal - Kolkata
Sneha Goenka, Howrah vs Ito, Ward-47(1), Kolkata, Kolkata on 28 June, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH "SMC" KOLKATA Before Shri S.S, Godara, Judicial Member ITA No.1445/Kol/2018 Assessment Year:2014-15 Sri Vikash AJhawar बनाम / ITO Ward-36(4), 110, 142 Old China Bazar V/s . Shantipally, Nr. Ruby Street, 3 r d Floor, Hospital, E.M.Byepass, Bhikamchand Market, Kolkata-107 Kolkata-700001 [PAN No.AEWPJ 9016 R] अपीलाथ /Appellant .. यथ /Respondent अपीलाथ क ओर से/By Appellant Shri Sunil Surana, FCA यथ क ओर से/By Respondent Shri Sankar Halder, JCIT-SR-DR सुनवाई क तार ख/Date of Hearing 26-06-2019 ITA No.2156/Kol/2018 Assessment Year:2015-16 Maan Vardhan Baid HUF बनाम / ITO Ward-35(4), 110, 313, Todi Chambers, 2, V/s . Shantipally, 8 t h Floor, Lal Bazar Street, Nr. Ruby Hospital, Kolkata-700001 E.M.Byepass, Kolkata-
[PAN No.AEWPJ 9016 R] 107 अपीलाथ /Appellant .. यथ /Respondent
अपीलाथ क ओर से/By Appellant Shri Yash Vardhan Baid, Advocate
यथ क ओर से/By Respondent Shri Sankar Halder, JCIT-SR-DR
सुनवाई क तार ख/Date of Hearing 26-06-2019
Page 2
ITA No.2526/Kol/2018
Assessment Year:2014-15
Anand Kedia बनाम / ITO Ward-22(4), 54/1,
29, R.N.Mukherjee Road, V/s . Rafi Ahmed Kidwai
Windsor House, 2 n d Floor, Road, 3 r d Floor,
R.No. 15, Kolkata-700001 Kolkata-700 016
[PAN No.AFQPK 8411 C]
अपीलाथ /Appellant .. यथ /Respondent
अपीलाथ क ओर से/By Appellant Anand Kedia Staff &
Shri Manish Tiwari, FCA
यथ क ओर से/By Respondent Shri Sankar Halder, JCIT-SR-DR
सुनवाई क तार ख/Date of Hearing 26-06-2019
ITA No.121/Kol/2019
Assessment Year:2014-15
M/s Dewdrop Securities Pvt. बनाम / ITO Ward-6(4),
Ltd., GD-278, Sector-III, Salt V/s . 169, AJC Bose,
Lake City, Road, 9thFloor,
Kolkata-700106 Kolkata
[PAN No.AACCD 9523 C]
अपीलाथ /Appellant .. यथ /Respondent
ITA No.2572/Kol/2018
Assessment Year:2014-15
Prachi Poddar बनाम / ITO Ward-62(2) 169,
42C, Ballygunge Circular V/s . AJC Bose Road, 9 t h
Road, Ballygunge, Floor, Kolkata
Kolkata
[PAN No.AKUPS 6109 A]
अपीलाथ /Appellant .. यथ /Respondent
आवेदक क ओर से/By Assessee Shri Dilip Kumar Patni, CA
राज व क ओर से/By Revenue Shri Sankar Halder, JCIT-SR-DR
सुनवाई क तार ख/Date of Hearing 26-06-2019
Page 3
ITA No.93/Kol/2019
Assessment Year:2014-15
Sona Kumar Show बनाम / ACIT, Ward-23(1),
C/o S.N.Ghosh & V/s . Aaykar Bhawan, G.T.
Associates, Advocates Road, Khadina More,
"Seven Brothers'Lodge" P.O.&P.S. Chinsurah,
P.O. Buroshibtala, P.S. Dist.Hooghly-712101
Chinsurah, Dist. Hooghly-
712105
[PAN No.AKAPS 5712 R]
अपीलाथ /Appellant .. यथ /Respondent
अपीलाथ क ओर से/By Appellant Shri Somnath Ghosh, Advocate
यथ क ओर से/By Respondent Shri Sankar Halder, JCIT-SR-DR
सुनवाई क तार ख/Date of Hearing 26-06-2019
ITA No.1653/Kol/2018
Assessment Year:2014-15
Manisha Madhogaria बनाम / ITO Ward-47(4),
C/o S.L.Kochar, Advocate, V/s . 3, Govt. Place
5, Ashutosh Chowdhury (West), Kolkata-700
Avenue, Kolkata-700019 001
[PAN No.AFNPM 4613 D]
अपीलाथ /Appellant .. यथ /Respondent
अपीलाथ क ओर से/By Appellant Shri Aryan Kochar, Advocate &
Shri Anil Kochar, Advocate
यथ क ओर से/By Respondent Shri Sankar Halder, JCIT-SR-DR
सुनवाई क तार ख/Date of Hearing 26-06-2019
ITA No.1049/Kol/2018
Assessment Year:2014-15
Shri Sushil Kumar Bardia बनाम / Income Tax Officer
20, N.S.Road, Kolkata- V/s . Ward-36(2), 9 t h Floor,
700001 Aaykar Bhavan Poorva,
Page 4
[PAN No.ADXPB 9014 D] 110, Shanti Pally,
Kolkata-107
अपीलाथ /Appellant .. यथ /Respondent
अपीलाथ क ओर से/By Appellant Shri Anil Kochar, Advocate
यथ क ओर से/By Respondent Shri Sankar Halder, JCIT-SR-DR
सुनवाई क तार ख/Date of Hearing 26-06-2019
ITA No.1670/Kol/2018
Assessment Year:2014-15
Ramakant Beriwala बनाम / Income Tax Officer
5, Clive Row, Room No.23, V/s . Ward-36(1), Aaykar
Kolkata-700001 Bhawan Poorva, 110,
[PAN No.ADWPB 8576 F] Shantipally, Kolkata-
107
अपीलाथ /Appellant .. यथ /Respondent
ITA No.1983 & 1987/Kol/2018
Assessment Year:2014-15
Nand Kishore Agarwala
25, Sabji Bagan Lane,
Chetla, Kolkata-700027
[PAN No.ADDPA 1800 A]
Income Tax Officer
बनाम /
Nand Kishore Agarwala Ward-35(2), Aaykar
L/h of Gita Devi Agarwala V/s . Bhawan Poorva, 110,
(Deceased) Shantipally, Kolkata-
25, Sabji Bagan Lane, 107
Chetla, Kolkata-700027
[PAN No.ADDPA 0573 C]
अपीलाथ /Appellant .. यथ /Respondent
आवेदक क ओर से/By Appellant Shri Manish Tiwari, FCA
राज व क ओर से/By Respondent Shri Sankar Halder, JCIT-SR-DR
सुनवाई क तार ख/Date of Hearing 26-06-2019
Page 5
ITA No.255 & 259/Kol/2019
Assessment Years:2014-15 &
2015-16
Manju Chowdhary
Phase-5, Block-9, Vivek
Vihar, 493/C/A,GT Road,
Howrah-711102
[PAN No.AFBPC 5564 P] Income Tax Officer
बनाम /
Ward-46(3), 3,Govt.
M/s Devi Prasad V/s . Place (West), 2 n d Floor,
Chowdhary, HUF, Phase-5, Kolkata-700001
Block-9, Vivek Vihar,
493/C/A G.T. Road,
Howrah-711102
[PAN No.AAFHD 2624 G]
अपीलाथ /Appellant .. यथ /Respondent
ITA No.257 & 258/Kol/2019
Assessment Year:2014-15
Sneha Goenka
Flat No.5A, Phase-5, Block,
9, Vivek Vihar, 493/C/A,
G.T. Road, Howrah-711102
[PAN No.BDHPG 2498 F] Income Tax Officer
बनाम /
Ward-47(1),3, Govt.
Rahul Goenka V/s . Place (Wet), 1 s t Floor,
Flat No.5A, Phase-5, Block, Kolkata-700001
9, Vivek Vihar, 493/C/A,
G.T. Road, Howrah-711102
[PAN No.BBUPG 6761 J]
अपीलाथ /Appellant .. यथ /Respondent
ITA No.2435/Kol/2018
Assessment Year:2014-15
Mahabir Prasad Banka बनाम / Income Tax Officer
107C, Todi Chambers, 2, Lal V/s . Ward-35(4), Aaykar
Bazar Street, Kolkata Bhawan Poorva, 110,
[PAN No.AHZPB 9957 H] Shantipally, Kolkata-
Page 6
107
अपीलाथ /Appellant .. यथ /Respondent
ITA No.2441/Kol/2018
Assessment Year:2015-16
B.N.Agarwal & Sons (HUF) बनाम / ACIT, Circle-46,
Balaji Apartments, 52/1, V/s . 3, Govt. Place (West),
Hazra Road, Kolkata-700 001
Kolkata-700019
[PAN No.AAEHB 3909 D]
अपीलाथ /Appellant .. यथ /Respondent
आवेदक क ओर से/By Assessee Shri Subash Agarwal, Advocate
राज व क ओर से/By Revenue Shri Sankar Halder, JCIT-SR-DR
सुनवाई क तार ख/Date of Hearing 26-06-2019
घोषणा क तार ख/Date of Pronouncement 28-06-2019
आदे श /O R D E R
These assessees have filed their instant appeals involving different assessment year(s) against the respective Commissioner of Income-tax (Appeals) separate order(s) affirming the Assessing Officer(s) identical action treating varying sums of Long Term Capital Gains (LTCG) / Long/Short Term Capital Loss (LTCL); as the case may be as involving unexplained cash credits u/s 68, involving proceedings u/s 143(3) of the Income Tax Act, 1961; in short 'the Act'.
2. I have heard these appeal(s) together of the fact that the sole identical issue raised in the instant entire batch is that of genuineness of assessees' LTCG/LTCL, as the case may be, derived from sale of shares held in various scrips. It is in this identical backdrop that I am treating ITA No.258Kol/2019 in case of Rahul Goenka vs. ITO Wd-47(1), Kolkata for assessment year 2014-15 as the "lead" case.
Page 7
3. Both the learned representative(s) take me to CIT(A)'s detailed discussion whilst treating the impugned STCL pre-arranged bogus loss in the instant "lead" case vide the following lower appellate discussion:-
"I have considered the submission of the appellant and perused the assessment records. The AO. in his assessment order had held that Long Term Capital Gains of Rs.650475/- which had been reflected the appellant in the returns on which he had claimed exemption u/s.10(38) of IT Act, 1961 was bogus and were added back as unexplained cash credit u/s. 68 of the Act.
In this regard the AIR of the appellant company was issued a detailed show cause letter asking to explain as to why the claim of LTCG in the above reported scripts i.e Luminaire Technologies Ltd and Unno Industries Ltd. should not be disallowed and added to the total income. The appellant in his reply has submitted that he had purchased shares through a stock broker r named Dimension Securities Pvt. Ltd. He further submitted that all the transactions were carried out electronically on the portal of the recognised stock exchange through registered broker at the prevailing market prices and the same supported by time stamped contract notes. The deliveries were received and given through depository account and the payments were made through banking channels. All the transactions are duly supported by credible evidences in no defect has been found in such documents.
The submission made by the appellant was considered. The assessment order of the A.O. was based on the report of the DIT (Inv.). The Investigation Wing of the Department had come out with a comprehensive report on the racket of providing accommodation entries in the form of long term capital gains/ losses by certain unscrupulous elements who had rigged the share price of certain scripts. The report pointed out to the suspicious transactions in the scripts of certain companies with a objective of tax avoidance. The Investigation Wing identified a total of 84 listed companies, 5000 paper companies and 25 entry operators involved in this racket. The statements of the operators were recorded in which they accepted of the rigging the price of the shares and managing the market to bring desirable results which suited their clients. These operators also accepted that they were doing this only for a paltry commission of 50 paisa to 1 rupees per Rs.I00 The A/R of the appellant in his submission had place reliance on the fact that all the transactions were carried out electronically on the portal of the recognised stock exchange through registered broker at the prevailing market prices and the same supported by time stamped contract notes. The deliveries were received and given through depository account and the payments were made through banking channels. All the transactions are duly supported by credible evidences in no defect has been found in such documents the facts that all transactions were carried out through portal of recognized stock exchange and payments made through banking channels does not indicate genuineness and only reflects proper paper work or documents. What is importance is whether the fluctuation of price of the companies are supported by the performance and financial fundamentals. It appears that most of these companies have hardly any business activities. On perusal of the share price of these companies over a period of 5 years, it is revealed that the graph assumes the shape of bells indicating rapid rise and fall in the shares of both the companies M/s Unno Industries and M/s Lumitech. The share price of both companies were examined and it is revealed that the share price had declined rapidly after reaching a peak for a short period. The share prices of the both companies are analyised as follows:
There is evidence that the share price of M/s Unno Industries Ltd were rigged artificially. This is supported, on verification by the price fluctuation of the shares of M/s Unno Industries Ltd for the period from F.Y. 2011-12 to 2016-17, the trends of which are as follows:-
Page 8 06.04.2011 0.96 25.01.2012 3.01 08.04.2013 28.30 20.09.2013 37.25 19.09.2014 21.30 29.02.2016 0.49 On examination of the share price of M/s Unno Industries Ltd, it is observed that from a measly amount of Rs.0.96 on 06.04.2011, the share price reached a high of Rs.37.25 on 20.09.2013. The appellant had sold his shares in A.Y. 2014-15. It was in that F.Y. that the shares of the company reached and all time high. Subsequently the next A.Y. the share price started to fall rapidly and is presently trading at less than 0.50 per share. The volatility in the share price gives credence to the allegation that the shares of M/s Unno Industries Ltd were rigged during the assessment year 2014-15. In the subsequent financial years, the value of shares of the company had witnessed a downward spiral. Secondly the share prices of M/s Unno Industries Ltd, are not in symmetry with the markets. It is a common knowledge, that when stocks are headed into a bull market cycle, the trend can be detected by a price rise, but when stocks are headed into a bear cycle, the trend can be detected by falling prices. The shares of M/s Unno Industries Ltd, mysteriously followed a reverse trend from the markets. In the period 2016 to 2018 when the Sensex witnessed a historic high, the shares of the company were at an all time low. The above findings, fortifies the findings of the Investigation Wing and the AO, that the transactions in shares were bogus and the share prices were rigged.
This volatility in the share price of the M/s Unno Industries Ltd also came to the attention of SEBI. Based on the report of SEBBI, the Bombay Stock Exchange had suspended trading in shares of M/s Unno Industries Ltd for a certain period. The notification from SEBI is reproduced as under:-
"Home Market Market Info Notices & Circulars Notices Go Back Notice No.20160504- 17 Notice Date 04 May 2016 Category Company related Segment Equity Subject Suspension of trading in securities of companies for non-compliance with Regulation 333 of SEBI Listing Regulations, 2015, Content Pursuant to the provisions of Circular no. CIR/CFD/CMD/12/2015 dated November 30, 2015 issued by Securities and Exchange Board of India (SEBI) with respect to Standard Operating Procedure (SOP) for suspension and revocation of equity shares of listed entities for non-compliance with provisions of SEBI Listing Regulations, 2015, Trading members are requested to note that the following will be effected;
(1) Trading in securities of the undermentioned companies will be suspended w.e.f. May 26,2016 (being 21 days from issue of this notice); on account of non-compliance with Regulation 33 of SEBI Listing Regulations; 2015 for two consecutive quarters i.e., September 2015 and December 2015 (2) Sr.No. Scrip Code Company name 1 517496 Ricoh India Ltd.
2 519273 Unno Industries Ltd.* 3 513937 Beckons Industries Ltd.
4 590063 Duncans Industries Ltd.
"This company is presently suspended due to Surveillancerlzeasureswef March, 31,2016 vide provisions of. Exchange Notice: 110. 2016032-8'-15· dated March, 28,2016.
Page 9 The following company has submitted- Financial Results-under Regulation 33 of SEBI Listing Regulations, 2015 for two consecutive quarters i.e, September 2015 and December 2015, However, it has not paid the applicable fines, hence as per the provisions of Circular no.CIR/CFD/CMD/12/2015 dated November 30, 2015 issued by Securities and Exchange Board of India (SEBI), this company would be suspended w.e.f. May 26, 2016 (being 21 days from issue of the notices.............................
Sr.No. Scrip Code Company name 1 539274 Boston Leasing and Finance Ltd
2) Freezing of the entire promoter shareholding of the aforesaid companies wef May 4, 2016 till further notice. Trading Members may further note that:
a) In case, any of the aforesaid companies comply (to the satisfaction of the Exchange) with all the provisions of SEBI Listing Regulations, 2015 including payment of fines on or before May 20,2016; trading in securities of the said companies will not be suspended
b) However, in case the aforesaid companies fail to comply with the provisions of SEBBI Listing Regulations, 2015, to the satisfaction of the exchange on or before May 20, 2016; then:-
Trading in the securities of the companies would be suspended we! May 26, 2016, and the suspension will continue till such time the Company complies including payment of fines, 15 days after suspension has been effected, trading in the shares of non-compliant companies would be allowed on trade for Trade basis in Z group only on the first trading day of every week for six months/. Revocation of suspension would be subject to the companies further complying with the procedure and all extant norms prescribed for revocation of suspension."
The BSE notification specially mentions that trading in shares of M/s Unno Industries Ltd is presently suspended due to Surveillance measures wet March 31, 2016 vide provisions of Exchange Notice no, 20160328-15 dated March 28,2016. The SEBI Circular and BSE Notification have raised doubts on the genuineness of the share price of M/s Unno Industries Ltd.
The analysis of the share price of M/s Luminaire Technologies revealed similar trend as follows:
March-10 5.20 5.20
Nov-11 15.65
July-12 39.80
April-13 53.85
Dec-13 46.50
June-14 26.35
Nov-14 1.40
Auag-16 0.20
The sharp fluctuation in price of the shares of M/s Luminaire Technologies Ltd for the period from F.Y. 2009-10 to 2016-17, raises the suspicion that the share prices were rigged for ulterior purposes. These suspicions had been confirmed by the report of Investigation Wing and the report of the SEBI which as pointed out by the AO had suspended trading in these two shares. The divergent range in price fluctuation of both shares raises doubts about the genuineness of transactions in these shares which appears to be bogus.
After careful consideration of the submission of the appellant, the relevant assessment records, and the data of share prices of M/s Unno Industries Limited and M/s Luminaire Page 10 Technologies as traded in BSE, it has to be held that the abnormal appreciation of share price which is not supported by any financial fundamentals is nothing but a colourable device for the avoidance of taxes. The appellant has indulged in chicanery and manipulation to launder his undisclosed income through a series of bogus transactions. The addition of Rs.6,50475/- as unexplained cash credit u/s. 68 is sustained. The appeal on these grounds fails and is therefore dismissed. The AO is directed accordingly. 5 In the result, the appeal is dismissed."
4. I have given my thoughtful consideration to rival contentions. Learned departmental representative vehemently supports both the lower authorities' identical action holding the assessee's STCL as bogus since derived from rigging of the scrip prices in issue and involving accommodation entry in collusion with the concerned entry operators. Hon'ble apex court's decisions in Sumati Dayal vs. CIT (1995) 80 Taxmann.89/214 ITR 801 (SC) and CIT vs. Durga Prasad More (1971) 82 ITR 540 (SC) are quoted before me during the course of hearing at the Revenue's behest. It strongly argues that the department has disallowed/added the impugned STCL based on circumstantial evidence unearthed after a series of search actions / investigations undertaken by the DDIT(Inv). I find no merit in Revenue's instant arguments. The fact remains that the assessee has duly placed on record the relevant contract notes, share certificate(s), detailed corroborative documentary evidence indicating purchase / sale of shares through registered brokers by banking channel, demat statements etc., The Revenue's only case as per its pleadings and both the lower authorities unanimously conclusion that there is very strong circumstantial evidence against the assessee suggesting bogus STCL accommodation entries. I find that there is not even a single case which could pin-point any making against these assessees which could be taken as a revenue nexus. I make it clear that the CBDT's circular dated 10.03.2003 has itself made it clear that mere search statements in the nature of admission in absence of supportive material do not carry weight. I notice that this tribunal's co- ordinate bench's decision in ITA No. 2474/Kol/2018 in Mahavir Jhanwar vs. ITO decided on 01.02.2019 has taken into consideration identical facts and circumstances as well as latest developments on legal side whilst deleting the similar bogus LTCG addition as follows:-
Page 11 "2. The sole issue that arises for my adjudication is whether the Assessing Officer was right in rejecting the claim of the assessee that he had earned Long Term Capital Gains on purchase and sale of the shares of M/s Unno Industries. The AO based on a general report and modus operandi adopted generally and on general observations has concluded that the assessee has claimed bogus long term capital gain. He made an addition of the entire sale proceeds of the shares as income and rejected the claim of exemption made u/s 10(38) of the Act. The evidence produced by the assessee in support of the genuineness of the transaction was rejected.
3. The assessee carried the matter in appeal and the ld. CIT(A), Kolkata, had upheld the addition. The ld. CIT(A) has in his order relied upon "circumstantial evidence"
and "human probabilities" to uphold the findings of the AO. He also relied on the so called "rules of suspicious transaction". No direct material was found to controvert the evidence filed by the assessee, in support of the genuineness of the transactions. In other words, the overwhelming evidence filed by the assessee remains unchallenged and uncontroverted. The entire conclusions drawn by the revenue authorities, are based on a common report of the Director of Investigation, Kolkata, which was general in nature and not specific to any assessee. The assessee was not confronted with any statement or material alleged to be the basis of the report of the Investigation Wing of the department and which were the basis on which conclusion were drawn against the assessee. Copy of the report was also not given.
4. The ld. D/R, submitted that the transaction was not genuine. He argued that the entire capital gain was stage managed by a few operators and investors. He relied on the order of ld. Assessing Officer and argued that the same be upheld. He relied on the order of the Chennai 'A' Bench of the Tribunal in the case of M/s. Pankaj Agarwal & Sons (HUF) vs. ITO in ITA No. 1413 to 1420/CHNY/2018; order dt. 06/12/2018, for the proposition that such capital gains have to be brought to tax. He also relied on the judgment of the Hon'ble Bombay High Court in the case of Sanjay Bimalchand Jain vs. Principal Commissioner of Income-tax-1, Nagpur; [2018] 89 taxmann.com 196 (Bombay) and the decision of the Smt. M.K. Rajeshwari vs. ITO;ITA No.1723/Bng/2018; Assessment Year 2015-16, order dt. 12/10/2018.
5. After hearing both sides, I find that in a number of cases this bench of the Tribunal and Jurisdictional Calcutta High Court has consistently held that, decision in all such cases should be based on evidence and not on generalisation, human probabilities, suspicion, conjectures and surmises. In all cases additions were deleted. Some of the cases were, detailed finding have been given on this issue, are listed below:-
Sl.No. ITA No.s Name of the Assessee Date of order/judgment 1 ITA No.714 to 718/Kol/2011 ITAT, DICT vs. Sunita Khemka 28.10.2015 Kolkata 2 214 ITR 244 Calcutta High Court CIT vs. Carbo Industrial Holdings Ltd. 3 250 ITR 539 CIT vs. Emerald Commercial 23.03.2001 Ltd. 4 ITA No.1236-1237/Kol/2017 5 ITA No.569/Kol/2017 Gautam Pincha 15.11.2017 6 ITA No.443/Kol/2017 Kiran Kothari HUF 15.11.2017 7 ITA No.2281/Kol/2017 Navneet Agarwal vs. ITO 20.07.2018 8 ITA No.456 of 2007 Bombay High CIT vs. Shri Mukesh Ratilal 18.01.2018 Page 12 Court Marolia 9. ITA No.95 of 2017 (O&M) PCIT vs. Prem Pal Gandhi 18.01.2018 10 ITA No.1089/Kol/2018 Sanjay Mehta 28.09.2018
6. Regarding the case laws relied upon by the ld. Departmental Representative, I find that, in the case of M/s. Pankaj Agarwal & Sons (HUF)(supra), the issue was decided against the assessee for the reason that, the assessee could not justify his claim as genuine by producing evidence and was only arguing for the matter to be set aside to the lower authorities on the ground of natural justice. As similar arguments were not raised before the lower authorities by the assessee, the ITAT rejected these arguments. In the case on hand, all evidences were produced by the assessee. In the case of Sanjay Bimalchand Jain, legal heir of Santi Devi Bimalchand Jain, the Hon'ble High Court upheld the stand of the Revenue that the transaction in question is an adventure in nature of trade and the profit of the transactions is assessable under the head of 'Business Income'. In the case on hand, the ld. Assessing Officer has not assessed this amount as 'Business Income'. In any event, I am bound to follow the judgment of the Jurisdictional High Court in this matter. I find that the assessee has filed all necessary evidences in support of the transactions. Some of these evidences are (a) evidence of purchase of shares, (b) evidence of payment for purchase of shares made by way of account payee cheque, copy of bank statements,
(c) copy of balance sheet disclosing investments, (d) copy of demat statement reflecting purchase, (e) copy of merger order passed by the High Court , (f) copy of allotment of shares on merger, (g) evidence of sale of shares through the stock exchange, (h) copy of demat statement showing the sale of shares, (i) copy of bank statement reflecting sale receipts, (j) copy of brokers ledger, (k) copy of Contract Notes etc.
7. The proposition of law laid down in these case laws by the Jurisdictional High Court as well as by the ITAT Kolkata on these issues are in favour of the assessee.
These are squarely applicable to the facts of the case. The ld. Departmental Representative, though not leaving his ground, could not controvert the claim of the ld. Counsel for the assessee that the issue in question is covered by the above cited decisions of the Hon'ble Jurisdictional Calcutta High Court and the ITAT. I am bound to follow the same.
8. In view of the above discussion I delete the addition made u/s 68 of the Act, on account of Long Term Capital Gains."
5. Coupled with this, hon'ble jurisdictional high court's other decisions in CIT vs. Rungta Properties Pvt. Ltd. ITA No.105 of 2016, CIT vs. Shreyahi Ganguly ITA No. 196 of 2012, M/s Classic Growers Ltd vs. CIT ITA No. 129 of 2012 also hold such transactions in scrips supported by the corresponding relevant evidence to be genuine. I adopt the above extracted reasoning mutatis mutandis therefore to delete the impugned STCL disallowance / addition of Rs.6,50,475/-. Unexplained commission Page 13 expenditure disallowance, if any shall automatically follow suit as a necessary corollary. No other argument or ground has been agitated before me during the course of hearing. This "lead" case ITA No.258/Kol/2019 is allowed in above terms. [Same order to follow in all the remaining sixteen appeal(s)] in absence of any distinction being pointed out at Revenue's behest.
6. All these assessees' seventeen appeals are allowed in above terms. A copy of the instant common order be placed in the respective case file(s).
Order pronounced in open court on 28/06/2019 Sd/-
(S.S. Godara)
Judicial Member
Kolkata,
*Dkp/Sr.PS
"दनांकः- 28/06/2019 कोलकाता
आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
1. अपीलाथ /Appellant-Sri Vikash Ajhawar 142, Old China Bazar, St, 3rd FL, Bhikamchand Market, Kolkata-001/Maan Vardhan Baid HUF, 313, Todi Chambers, 2, Lal Bazare St. Kolkata-001/ Anand Kedia, 29, R.N.Mukherjee, Rd, Windsor House,2nd Fl, R.No.15, Kolkata-001/M/s Dewdrop Securities Pvt. Ltd. GD-278, Sector-II, Salt Lake City, Kolkata-106/Sona Kr. Show C/o S.N.Ghosh & Assocaites, Advocates "Seven Brothers'Lodge" P.O. Buroshibtala, P.S. Chinsurah, Dist. Hooghly-712105/Manisha Madhogoaria C/o S.L. Kochar, Advocate, 5, Ashutosh Chowdhury, Avenue, Kolkata-19/ Shri Sushil Kr. Bardia, 20, N.S.Road, Kolkata-001/Ramakant Beriwala, 5 Clive Row, R.No.23, Kolkata-001/Nand Kishore Agarwala-Nane Koshore Agarwala L/h of Gita Devi Agarwala (Deceased),25, Sabjai Bagan, Lane, Chetla, Kolkata-27/Manju Chowdhary-M/s Devi Prasad Chowdhary, HUF, Phase-5,Block 9, Vivek Vihiar, 493/C/A, G.T. Road, Howrah-711102/Sneha Goenka-Rahul Goenka, Flat No.5A, Phase-5, Block 9, Vivek Vihar, 493/C/A, G.T.Road, Howrah-711102/Mahabir Prasad Banka 107C, Todi Chambers, 2 Lal Bazar St. Kolkata/B.N. Agarwal & Sons (HUF), Balaji Apartments, 52/1, Hazra Road, Kolkata-19
2. यथ /Respondent-ITO Wd-36(4)-35(4), 110, Shantipally, 8th Floor. Nr. Ruby Page 14 Hospital, E.M.Byepass, Kolkata-107/ITO Wd-22(4), 54/1 Rafi Ahmed Kidwai Rd. 3rd Fl, Kolkata-16/ITO Wd-6(4), 169, AJC Bose Road, 9th Fl.Kolakta-16/ITO Wd-62(2), 169, AJC Bose Road, Kolkata-16/ACIT, Wd-23(1), Aaykar Bhawan, G.T. Road, Khadina More, P.O&P.S. Chinsurah, Dist. Hooghly- 712101/ITO Wd-47(4), 3, Govt. Place (West), Kolkata-001/ ITO Wd-36(2), 9th Fl, Aaykar Bhavan, Poorva, 110, Shanti Pally, Kolkata-107ITO Wd-36(1)-35(2), Aaykar Bhawan Poorva, 10, Shantipally, Kolkata-107/ITO Wd-46(3),-47(1) 3 Govt. Place (West), 2nd Fl, Kolkata-001/ITO Wd-46(3)- 47(1), 3, Govt. Place (West), 2nd Fl, Kolkata-001/ITO Wd-35(4), Aaykar Bhawan, Poorva, 110, Shantipally, Kol-107/ ACIT, Cir-46, 3, Govt. Place (West), Kolkata-001
3. संबं%धत आयकर आयु'त / Concerned CIT
4. आयकर आयु'त- अपील / CIT (A)
5. (वभागीय +त+न%ध, आयकर अपील य अ%धकरण कोलकाता / DR, ITAT, Kolkata
6. गाड- फाइल / Guard file.
By order/आदे श से, /True Copy/ सहायक पंजीकार आयकर अपील य अ%धकरण, कोलकाता ।