Income Tax Appellate Tribunal - Kolkata
Devi Prasad Dudhani , Kolkata vs Ito, Ward - 34(3), Kolkata on 7 August, 2019
1
ITA Nos. 819/Kol/2018,
Vipul Patel & Ors. AY 2014-15 & Ors.
आयकर अपील य अधीकरण, यायपीठ - "SMC" कोलकाता,
IN THE INCOME TAX APPELLATE TRIBUNAL "SMC" BENCH: KOLKATA
ी ऐ. ट . वक , यायीक सद य)
[Before Shri A. T. Varkey, JM]
I.T.A. No. 819/Kol/2018
Assessment Year: 2014-15
Shri Vipul Patel Vs. ITO, Ward - 45(4), Kolkata Date of hearing :
C/o O. P. Agarwal & Co. 3, Government Place, 02.07.2019
Sharma Market, 9, Old China Kolkata-700 001.
Bazar Street, 4th floor, Room
No. 65, Kolkata-700 001.
(PAN: ATNPP4362N)
Appellant Respondent
&
I.T.A. No.2163/Kol/2018
Assessment Year: 2015-16
Pankaj Kumar Verma Vs. ITO, Ward - 22(4), Kolkata Date of hearing :
C/o Subash Agarwal & 54/1, Rafi Ahmed Kidwai 02.07.2019
Associates, Advocates, Road, 4th floor, Kolkata-
Siddha Gibson, 1, Gibson 700 016.
Lane, Suite 213, 2nd floor,
Kolkata-69.
(PAN: ABRPV6407G)
Appellant Respondent
&
I.T.A. No.2354/Kol/2018
Assessment Year: 2014-15
Smt. Manju Devi Mundhra Vs. ITO, Ward - 44(3), Kolkata Date of hearing :
3C, Noormal Lohia Lane, 1st 3, Government Place, West, 02.07.2019
floor, Kolkata-700 007. Kolkata-700 001.
(PAN: AFAPM7507D)
Appellant Respondent
&
2
ITA Nos. 819/Kol/2018,
Vipul Patel & Ors. AY 2014-15 & Ors.
I.T.A. No.2356/Kol/2018
Assessment Year: 2014-15
Smt. Krishna Devi Mundhra Vs. ITO, Ward - 44(2), Kolkata Date of hearing :
3C, Noormal Lohia Lane, 1st 3, Government Place, West,
floor, Kolkata-700 007. Kolkata-700 001.
(PAN: AFAPM6567P)
Appellant Respondent 02.07.2019
&
I.T.A. No.2355/Kol/2018
Assessment Year: 2014-15
Smt. Saroj Devi Mundhra Vs. ITO, Ward - 45(2), Kolkata Date of hearing :
3C, Noormal Lohia Lane, 1st 3, Government Place, West, 02.07.2019
floor, Kolkata-700 007. Kolkata-700 001.
(PAN: ALYPM7386G)
Appellant Respondent
&
I.T.A. No.2402/Kol/2018
Assessment Year: 2014-15
Shri Rajesh Jhunjhunwala Vs. ITO, Ward - 3(1), Asansol Date of hearing :
C/o Subash Agarwal & Parmar Building, 54 G.T.
Associates, Advocates, Road, P.O. Asansol-713304
Siddha Gibson, 1, Gibson
Lane, Suite 213, 2nd floor,
Kolkata-69.
(PAN: ACHPJ4449D)
Appellant Respondent 03.07.2019
&
I.T.A. No.2403/Kol/2018
Assessment Year: 2014-15
Shri Rakesh Jhunjhunwala Vs. ITO, Ward - 3(1), Asansol Date of hearing :
C/o Subash Agarwal & Parmar Building, 54 G.T.
Associates, Advocates, Road, P.O. Asansol-713304
Siddha Gibson, 1, Gibson
Lane, Suite 213, 2nd floor,
Kolkata-69.
(PAN: ACWPJ7687C)
Appellant Respondent 03.07.2019
3
ITA Nos. 819/Kol/2018,
Vipul Patel & Ors. AY 2014-15 & Ors.
&
I.T.A. No.2405/Kol/2018
Assessment Year: 2014-15
Shri Gulab Chand Dudhani Vs. ITO, Ward - 34(4), Kolkata Date of hearing :
C/o Jethmall Surajmall 35, Aayakar Bhawan, Poorva,
Armenian Street, Kolkata- 9th floor, Kolkata-700 107
700 001.
(PAN: ACQPD8021N)
Appellant Respondent 03.07.2019
&
I.T.A. No.2406/Kol/2018
Assessment Year: 2014-15
Shri Devi Prasad Dudhani Vs. ITO, Ward - 34(3), Kolkata Date of hearing :
C/o Jethmall Surajmall 35, Aayakar Bhawan, Poorva,
Armenian Street, Kolkata- 9th floor, Kolkata-700 107
700 001.
(PAN: ACOPD8449E)
Appellant Respondent 03.07.2019
&
I.T.A. No.1748/Kol/2018
Assessment Year: 2014-15
Shri Sailesh Agarwal Vs. ITO, Ward - 46(1), Kolkata Date of hearing :
520 Sukhi Sansar, 134, 3, Government Place (East),
Salkia School Road, Howrah- 2nd floor, Kolkata-700 001.
711 106
(PAN: AHNPA5046J)
Appellant Respondent 04.07.2019
&
I.T.A. No.1744&1745/Kol/2018
Assessment Years: 2014-15 & 2015-16
Shri Pradeep Kumar Agarwal Vs. ITO, Ward - 46(1), Kolkata Date of hearing :
17/19, Jelia Para 2nd Bye 3, Government Place (East),
Lane, Flat No. 5D, Salkia, 2nd floor, Kolkata-700 001.
Howrah-711 106.
(PAN: ADEPA7671E)
Appellant Respondent 04.07.2019
4
ITA Nos. 819/Kol/2018,
Vipul Patel & Ors. AY 2014-15 & Ors.
&
I.T.A. No.1746/Kol/2018
Assessment Year: 2014-15
Shri Pawan Kumar Agarwal Vs. ITO, Ward - 46(1), Kolkata Date of hearing :
17/19, Jelia Para 2nd Bye 3, Government Place (East),
Lane, Flat No. 5D, Salkia, 2nd floor, Kolkata-700 001.
Howrah-711 106.
(PAN: ADEPA7670F)
Appellant Respondent 04.07.2019
&
I.T.A. No.1747/Kol/2018
Assessment Year: 2014-15
Shri Arun Kumar Agarwal Vs. ITO, Ward - 46(1), Kolkata Date of hearing :
17/19, Jelia Para 2nd Bye 3, Government Place (East),
Lane, Flat No. 5D, Salkia, 2nd floor, Kolkata-700 001.
Howrah-711 106.
(PAN: ACZPA6894K)
Appellant Respondent 04.07.2019
Date of Pronouncement 07.08.2019
For the Appellant Shri Subash Agarwal, Advocate
For the Respondent Shri Sankar Halder, JCIT, Sr. DR
ORDER
Per Shri A.T.Varkey, JM
All these appeals preferred by different assessee's are against the separate orders of Ld. CIT(A). Since grounds are common and facts are identical, and the common ground is raised is whether the ld CITA was justified in upholding the addition made by the AO u/s 68 of the Income-tax Act, 1961 (hereinafter referred to as the "Act") in respect of sale proceeds of shares of M/s Kailash Auto Finance Limited (KAFL) treating the same as income from undisclosed sources after rejecting the assessee's claim of Long Term Capital 5 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
Gains (LTCG) u/s. 10(38) of the Act on sale of those shares, we dispose of all these appeals by this consolidated order for the sake of convenience by taking the appeal for AY 2014-15 in I.T.A. No. 819/Kol/2018 in the case of Shri Vipul Patel as the lead case and the result of which will be following for other cases also [However, relevant factual finding of each appeal will be discussed separately infra].
2. The assessee's [Shri Vipul Patel] sole ground of appeal is as to whether on the facts and circumstances of the case, the ld CITA was justified in upholding the addition made by the AO u/s 68 of the Income-tax Act, 1961 (hereinafter referred to as the "Act") in respect of sale proceeds of shares of M/s Kailash Auto Finance Limited (KAFL) treating the same as income from undisclosed sources after rejecting the assessee's claim of Long Term Capital Gains (LTCG) u/s. 10(38) of the Act on sale of those shares.
3. In respect of ITA No. 819/Kol/2018 in Vipul Patel Vs. ITO for AY 2014-15 the facts are that the assessee claimed long term capital gains of Rs.43,41,314/-. The AO found that the assessee has claimed LTCG of Rs.43,41,314/- on sale of shares of M/s. Kailash Auto Finance Limited (KAFL) which is exempt u/s. 10(38) of the Act. The AO noted that the assessee had sold 1,10,000 shares of M/s. Panchshul Marketing Ltd. for a gross sale consideration of Rs.43,41,314/- (Rs.39.46 per share) through transactions on various dates. According to AO, the assessee purchased 110000 shares of M/s. Panchshul Marketing Ltd. on 16.08.2012 for a sum of Rs.1,10,000/- i.e. Rs. 1/- per share (not through established stock exchange). Later on the said shares were merged with M/s. KAFL. The AO issued notice u/s. 133(6) to the party named M/s., Shivsakti Exports Pvt. Ltd. from whom the shares were claimed to have purchased but the said letter was returned un-served and thereby according to AO, the genuineness of purchase of share was not proved. According to AO, on perusal of the documents submitted by the assessee, it was noticed that the assessee's return of income does not show substantial trading activity or investment in shares of listed companies. As such according to him assessee's move to acquire the shares of M/s. Panchshul Marketing Ltd was a predetermined move with the sole aim to bring back his own unaccounted money. Therefore, the AO concluded that 6 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
purchase of shares on 16.08.2012 when company was new and one year old only and did not had any substantial profit; and despite being new in share market and having no substantial share transactions in the earlier years and subsequent years; and when financial results of M/s. Panchshul Marketing Ltd. were not splendid and no chance of lucrative gains at the stage of purchase of its shares, therefore was a predetermined action on assessee's part leading to subsequent path to acquire LTCG by way of dubious methods. This predetermined action, according to AO, is one of the circumstantial evidence leading to the conclusion that LTCG earned was not a genuine transaction. Thus, according to AO, the genuinity of purchase of share was not proved. Thereafter, the AO relying on the report of the Investigation Wing, Kolkata and an order by SEBI alleged that the claim of assessee of exempt income (LTCG) was bogus in nature. The AO further alleged that the transactions in the scrip of Kailash Auto Finance Ltd. (KAFL) were being manipulated by entry operators and the share prices were hiked artificially to earn LTCG. So, the AO did not accept the assessee's claim of LTCG and exemption thereof claimed by the assessee. Thereafter, the AO treated the same as cash credit u/s 68 of the Act and added the entire LTCG to the income of the assessee as unexplained income. On first appeal, the Ld. CIT(A) dismissed the grounds raised by the assessee against his claim of exemption u/s 10(38) of the Act and he also confirmed the additions made by the AO under section 68 of the Act. Aggrieved, the assessee is in appeal before this Tribunal.
4. At the time of hearing the Ld. Counsel for the assessee submitted that the assessee had purchased 1,10,000 numbers of shares of M/s. Panchshul Marketing Pvt. Ltd. on 16.08.2012 at a total cost of Rs.1,10,000/- from M/s. Shivsakti Exports Pvt. Ltd. The payment according to him was made through an account payee cheque. Then M/s. Panchshul Marketing Pvt. Ltd was merged with M/s. Kailash Auto Finance Ltd. Thereafter, in the relevant year, the assessee sold the shares at a consideration of Rs.43,41,314/- through Kotak Securities Ltd. which is a registered broker of the BSE and claimed Long Term Capital Gains of Rs.42,06,471/-. Copy of contract notes (available at pages 13 to 15 of paper book) in connection with sale of shares along with the bank statement reflecting the receipt of sale consideration, broker's ledger and demat statement (page 18-23 of the paper 7 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
book) are enclosed in the paper book. He also submitted that the A.O. at the time of assessment proceedings described the Modus Operandi of booking the alleged bogus LTCG. The A.O. has nowhere in the assessment order referred to any material which can prove the complicity of assessee either in the price rigging or in the alleged accommodation entry operation. According to ld AR, the Ld. CIT(A) confirmed the action of the AO on the ground that the entire transactions entered into by the assessee are beyond human probability. It was pointed out by the ld AR that in the instant case, the assessee is not connected with M/s Kailash Auto Finance Ltd the amalgamated company or their promoters, directors and any other person who exercised any control over Kailash Auto Finance Ltd which was the amalgamated company or any so called entry operators. As a matter of fact it was contented by the ld AR that neither the assessee indulged in any activity as alleged by AO nor has been part of any modus operandi as stated by the A.O. According to ld AR, the assessee has transacted in the shares of Kailash Auto Finance Ltd/amalgamated company in the normal course of investment like millions of investors do in the stock market. Therefore, the question of alleged conversion of unaccounted money in the form of alleged bogus long term capital gains with the help of many alleged connected parties/intermediaries through price rigging and price manipulations does not arise. According to him, there is no material evidence for the A.O. to conclude what is apparent is not real. In the absence of any link between the assessee and the alleged admissions of the directors and brokers, human probability is being used as a vague and convenient medium for the Departments conjectures. Blaming the assessee by vague observations and drawing an adverse inference without any admissible evidence on record, on the part of the lower authorities is not justified in the eyes of law. In this connection, he placed reliance on the following decisions: i) Lalchand Bhagat Ambica Ram vs. CIT [1959] 37 ITR 288 (SC);
ii) CIT (Central) Calcutta vs. Daulat Ram Rawatmull (87 ITR 349) iii) Andman Timber Industries vs. CCE - [2015J 62 taxmann.com 3 (SC) (iv) P.S. Abdul Majeed vs. Agricultural Income-Tax and Sales Tax Officer And Others 209 ITR 821 (Ker.) (v) CIT vs. Eastern Commercial Enterprises 210 ITR 103 (Cal) 8 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors. (vi) Asst. CIT vs Ajnara India Ltd (2011) 49 DTR 273 (Del-Trib)
(vii) Calcutta High Court in S.K.Bothra & Sons (HUF) vs ITO (2011) 62 DTR (Cal)234
(viii) Delhi High Court in CIT vs Rajesh Kumar (2008) 306 ITR 27
(ix) CIT vs. Carbo Industries Holdings Ltd. 244 ITR 422 (Cal)
(x) CIT vs. Emerald Commercial Ltd. 250 ITR 539 (Cal)
(xi) Manish Kumar Baid vs. ACIT, order dated 18.08.2017; ITANo. 1236-1237/K/17
(xii) Vasudha Jain vs. ITO, ITA No. 10181K/2018, order dated 15.02.2019
(xiii) Prakasho Devi Saria vs. ITO, ITA No. 23601K/2017, order dated 17.05.2019
(xiv) CIT vs. Bhagwati Prasad Agarwal (Calcutta High Court); ITA No.22 of 2009, dated 29.04.09.
Further the ld AR countering the observation of AO that the company in question had insignificant business operation so none could have ventured to purchase the shares of M/s Panchshul Marketing and later amalgamation with M/s KAFL, raises doubts about the unprecedented rise in its price according to ld AR is also of no consequence. According to him it is a well-known fact in the stock market that share price movement has very often no correlation with the fundamentals of the company. The price of any commodity including shares is determined by the market forces of demand and supply of the market players and not by their intrinsic worth. The ld AR submits that the assessee bonafidely purchased the shares in private placement in anticipation of substantial gain and sold the shares on the online system/platform, when substantial gains materialized. It was contented by ld AR that just because some unscrupulous persons indulged in the rigging of prices, the transactions bonafidely transacted by the assessee in the fully legitimate system with not a shred of evidence on record to prove the complicity of the assessee/broker of assessee in the alleged modus-operandi, it is not legally allowed to draw any adverse inference against the assessee. It was pointed out by the ld AR that the A.O. has also nowhere in the assessment order referred to any material which can prove the complicity of assessee in the alleged accommodation entry operation. According to Ld. AR, the AO/CIT(A) was not justified in invoking the provisions of section 68 of the Act in regard to the sale proceeds of shares. According to ld AR, when the assessee had produced all evidences to explain the source of the amounts received by the assessee from the brokers and there is no evidence on record to 9 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
disbelieve that the assessee sold shares through registered share and stock broker, the AO was not justified in assessing the sale proceeds of shares as undisclosed income. Therefore, he prayed before us that the appeal of the assessee may please be allowed.
5. Per contra, the Ld. DR vehemently supported the orders of the lower authorities and cited 23 case-laws in support of Revenue which I will be dealing separately (infra) and vehemently opposed the contentions of the assessee and took us through the AO's order and Ld. CIT(A) order and submitted that scrips of M/s. KAFL was artificially rigged to provide LTCG to the assessee which cannot be allowed and supported the impugned order and relied on the order of Hon'ble Bombay High Court in the case of Binod Chand Jain in Tax Appeal No.18 of 2017 does not want me to interfere. He also contented that in this case purchase of the stock of Panchshul Marketing Ltd. was not an investment decision. According to him, the assessee never came out with any explanation as to why he choose to purchase this company's share in large number and how that company was an investment destination. The behavior according to ld DR exposes the intention of the assessee from the decision of his purchase and the sequence of events that followed till its sale clearly shows that it was not an investment decision. Rather, assessee's behaviour shows that such transaction was entered into with a pre-planned and pre-arranged manner where assessee was over confident about making huge gain for certain reason which assessee never disclosed. According to ld DR, the fantastic rate of return from such transaction within the shortest period of time to ensure the gain as LTCG was just unbelievable, and same thing hardly happens in reality on a single attempt. So this activity was beyond any human logic and possible. He also contended that in the instant case, the behavior of the assessee regarding purchase of this stock was found to be dubious. Without prejudice to the action of AO, it was contented by the ld DR that it appears that the decision of such purchase was triggered by certain information in the possession of the assessee, or some arrangement and assessee just exploited such situation for making huge gain. So, the income arising out of such action should be considered as profit out of "an adventure in the nature of trade" and not from an investment. Therefore, it was submitted that, if the appeal of the assessee is upheld by this Bench for any reason, this alternative ground is put up for my consideration.
10 ITA Nos. 819/Kol/2018,Vipul Patel & Ors. AY 2014-15 & Ors.
According to ld DR, the AO considered the transaction as bogus and added the entire LTCG income u/s 68, so there was no occasion at that time to take an alternate ground for addition. In view of that, such transaction at best may be considered as an "adventure in the nature of trade". According to him, in the case of Sanjay Bimalchand Jain[2018] 89 taxmann.com 196 (Bombay), the assessee purchased large number of shares of two penny stock companies at a nominal rate in large quantity which assessee claimed as an investment. Considering the circumstances of that case the Assessing Officer did not accept the claim of the assessee and held that the transaction with a penny stock of an insignificant company, its subsequent the merger with a new company, and ultimate sale of the shares of the new company at such an higher profit within a short period of time falls in the ambit of an adventure in the nature of trade, and so, AO brought the aforesaid amount to tax under the head 'business income'. On appeal, the Commissioner (Appeals), as well as, the Tribunal upheld the decision of the Assessing Officer. In view of the above, it was submitted that assessee's dealing with this stock may be considered as "an adventure in the nature of trade" and so, profit derives from such activity may kindly be considered as income from business or other sources." And thus urged before the bench to confirm the orders of the lower authorities.
6. I have heard rival submissions and gone through the facts and circumstances of the case. At the time of hearing it was brought to my notice by the Ld. AR that this Tribunal in the following cases have decided that the scrips of KAFL are not bogus and held that the LTCG claim of the assessee needs to be allowed:
i) Manish Kumar Baid Vs. ACIT, ITA Nos. 1236& 1237/Kol/2017 dated 18.08.2017
ii) Rukmini Devi Manpria Vs. DCIT, ITA No.1724/Kol/2017 dated 24.10.2018
iii) Jagmohan Agarwal Vs. ACIT, ITA No.604/Kol/2018 dated 05.09.2018.
It was also brought to my notice that in this appeal, the facts was that the assessee an individual had purchased 1,10,000 equity shares of M/s Panchshul Marketing Ltd. on 16.08.2012 from M/s. Shivsakti Exports Pvt. Ltd. M/s. Panchshul Marketing Ltd. was merged with M/s. KAFL and there was change of management and control of M/s. KAFL Ltd. pursuant to scheme to arrangement sanctioned by the Hon'ble High Court at Allahabad.
11 ITA Nos. 819/Kol/2018,Vipul Patel & Ors. AY 2014-15 & Ors.
It is noted that the purchase of aforesaid 1,10,000 equity of M/s. Panchshul Marketing Ltd. was made by account payee cheque of Dena Bank, vide cheque No. 940155. It was also brought to my notice that shares of M/s. KAFL were allotted to the assessee upon merger of M/s. Panchshul Marketing Ltd. with M/s. KAFL pursuant to sanction of scheme of arrangement by the Hon'ble Allahabad High Court and 1,10000 equity shares were allotted to the assessee in lieu of shareholding in Panchshul Marketing Ltd. It was also brought to my notice that the AO was influenced by an interim order of SEBI dated 29.03.2016, which the SEBI has withdrawn by later order dated 21.09.2017 by virtue of it all the restrictions imposed upon by the earlier order dated 29.03.2016 has been withdrawn, since SEBI could not find any infirmity in the scrips of M/s. KAFL.
7. I note that similar issue arose in Manish Kumar Baid, (supra) wherein, the Tribunal allowed the claim of assessee in respect of LTCG from sale of scrips of M/s. KAFL has held as under:
"6. We have heard both the rival submissions and perused the materials available on record. We find lot of force in the arguments of the ld AR that the ld AO was not justified in rejecting the claim of the assessee on the basis of theory of surrounding circumstances, human conduct, and preponderance of probability without bringing on record any legal evidence against the assessee. We rely on the judgement of Special Bench of Mumbai Tribunal in the case of GTC Industries Ltd. (supra) for this proposition. The various facets of the arguments of the ld AR supra, with regard to impleading the assessee for drawing adverse inferences which remain unproved based on the evidences 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 find that the amalgamation of CPAL with KAFL has been approved by the order of Hon'ble High Court. The ld AO ought not to have questioned the validity of the amalgamation scheme approved by the Hon'ble High Court in May 2013 merely based on a statement given by a third party which has not been subject to cross -examination. Moroever, it is also pertinent to note that the assessee and / or the stock broker Ashita Stock Broking Ltd name is neither mentioned in the said statement as a person who had allegedly dealt with suspicious transactions nor they had been the beneficiaries of the transactions of shares of KAFL. Hence we 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 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 lower authorities apart from placing the copy of SEBI's interim order supra. We find that the SEBI's orders relied on by the ld AO and referred to him as direct evidence against the assessee did not contain the name of the assessee and/or the name of Ashika Stock Broking Ltd. through whom the assessee sold the shares of KAFL as a beneficiary to the alleged accommodation entries 12 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
provided by the related entities / promoters / brokers / entry operators. In the instant case, the shares of CPAL were purchased by the assessee way back on 20.12.2011 and pursuant to merger of CPAL with KAFL, the assessee was allotted equal number of shares in KAFL, which was sold by the assessee by exiting at the most opportune moment by making good profits in roder to have a good return on his investment. We find that the assessee and / or the broker Ashita Stock Broking Ltd was not the primary allottees of shares either in CPAL or in KAFL as could be evident from the SEBI's order. We find that the SEBI order did mention the list of 246 beneficiaries of persons trading in shares of KAFL, wherein, the assessee and / or Ashita Stock Broking Ltd's name is not reflected at all. Hence the allegation that the assessee and / or Ashita Stock Broking Ltd getting involved in price rigging of KAFL shares fails. We also find that even the SEBI's order heavily relied upon by the ld AO clearly states that the company KAFL had performed very well during the year under appeal and the P/E ratio had increased substantially. Thus we hold that the said orders of SEBI is no evidence against the assessee, much less to speak of direct evidence. The enquiry by the Investigation Wing and/or the statements of several persons recorded by the Investigation Wing in connection with the alleged bogus transactions in the shares of KAFL also did not implicate the assessee and/or his broker. 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 various case laws of Hon'ble Jurisdictional High Court 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 KAFL as undisclosed income of the assessee u/s 68 of the Act. We accordingly hold that the reframed question no. 1 raised hereinabove is decided in the negative and in favour of the assessee."
8. Coming back to the instant case, it is noted that the assessee had purchased 1,10,000 equity shares of Panchshul Marketing Ltd. on 16.08.2012 from M/s. Shivsakti Exports Pvt. Ltd. Later M/s. Panchshul Marketing Ltd. was merged with M/s. KAFL and there was change of management and control of M/s. KAFL Ltd. pursuant to scheme to arrangement sanctioned by the Hon'ble High Court at Allahabad. It is also noted that the purchase of aforesaid 1,10,000 equity of M/s. Panchshul Marketing Ltd. was made by account payee cheque of Dena Bank, vide cheque No. 940155. It is also noted that shares of M/s. KAFL were allotted to the assessee upon merger of M/s. Panchshul Marketing Ltd. with M/s. KAFL pursuant to sanction of scheme of arrangement by the Hon'ble Allahabad High Court and 1,10000 equity shares were allotted to the assessee in lieu of shareholding in Panchshul Marketing Ltd. It is clarified that off market transaction has not been prohibited and if carried out legally cannot be held to be bogus only on this count. It is further noted 13 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
that 96,001 shares were later sold at a price of Rs.43,41,314/- in the Stock Exchange of Bombay, through SEBI registered stock broker Kotak Securities Pvt. Ltd. whose SEBI Regd. No. IN300214 vide contract notes issued regarding sale of equity shares of M/.s. KAFL, which assessee claimed to have resulted in Long Term Capital Gains and after remitting STT on the transaction, the assessee claimed exemption u/s 10(38) of the Act of Rs.43,41,314/-. It is noted that the assessee has paid the amount of Rs.1,10,000/- through account payee cheque to M/s. Shivsakti Export Pvt. Ltd (purchase bill available at paper book pages 9 and copy of Bank statement showing payments made for purchase of shares found placed at page 11 of paper book). The said company (M/s. Panchshul Marketing Ltd.) was later merged with M/s. Kailash Auto Finance Ltd. as per the order of the Hon'ble High Court of Allahabad dated 09.05.2013 and consequent to merger, the assessee had received 1,10,000 shares of M/s. KAFL and the shares were directly credited to assessee's Demat Account. The assessee sold the said shares during the previous year relevant to assessment year under consideration and such sale was made in the Bombay Stock Exchange through M/s. Kotak Securities Pvt. Ltd., a registered share and stock broker (contract note placed at pages 13 to 15 of Paper Book) after duly paying the Security Transaction Tax (STT). The sale consideration the assessee received by account payee cheque in its Dena Bank account which is evident from the bank statement filed before us at page 16-17 of the paper book. Therefore, the long term capital gain earned in the process has been claimed as exempt income under section 10(38) of the Act. I also note that in support of the assessee's contention various documents had been filed during the course of assessment proceedings i.e. copies of purchase bills, which is available in paper book page 9, copy of Bank statements showing payments made for purchase of shares, which is available in paper book pages 11, demat account with M/s. Kotak Securities Pvt. Ltd. page 18-23, copies of contract notes in respect of sale of shares, which is available at pages 13-15 of paper book, copy of bank statements showing receipts against sale of shares, which is available at page 16-17 of the paper Book.
9. I note that shares of M/s. KAFL were sold by assessee through recognized broker in a recognized Stock Exchange. The details of such sale and contract note have been 14 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
submitted before AO/Ld. CIT(A). I take note that when the transactions happened in the Stock exchange, the seller who sells his shares on the stock exchange does not know who purchases shares. It is noted that the shares are sold and bought in an electronic mode on the computers on-line by the brokers and there is also no direct contact at any level even between the brokers. It is noted that as and when any shares are offered for sale in the stock exchange platform, any one of the thousands of brokers registered with the stock exchange is at liberty to purchase it. As far as our understanding the selling broker does not even know who is the purchasing broker. This is how the SEBI keeps a strict control over the transactions taken place in recognized stock exchanges. Unless there is a evidence to show that there is a breach in the aforesaid process which fact has been unearthed by meticulous investigation, I am of the opinion that the unscrupulous actions of few players exploiting the loopholes of the Stock Exchange, if any, cannot be the basis to paint the entire sale/purchase of a scrip like that of M/s. KAFL as bogus without bringing out adverse material specifically against the assessee.
10. The fact of holding the shares in the D-mat account cannot be disputed. Further, the Assessing Officer has not even disputed the existence of the D-mat account and shares credited in the D-mat account of the assessee. Therefore, once, the holding of shares is D- mat account cannot be disputed, then the transaction cannot be held as bogus. The AO has not disputed the sale of shares from the D-mat account of the assessee and the sale consideration was directly credited to the bank account of the assessee, therefore, once the assessee produced all relevant evidence to substantiate the transaction of purchase, dematerialization and sale of shares then, in the absence of any contrary material brought on record the same cannot be held as bogus transaction merely on the basis of report of Investigation Wing, Kolkata wherein there is a general statement of providing bogus long term capital gain transaction to the clients without stating anything about the transaction of allotment of shares by the company to the assessee.
15 ITA Nos. 819/Kol/2018,Vipul Patel & Ors. AY 2014-15 & Ors.
11. The Mumbai Special of the Tribunal in case of GTC Industries vs. ACIT (supra) had the occasion to consider the addition made by the AO on the basis of suspicion and surmises and observed in par 46 as under:-
"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 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 howsoever 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."
12. Therefore, when the Assessing Officer has not brought any material on record to show that the assessee has paid over and above the purchase consideration as claimed and evident from the bank account then, in the absence of any evidence it cannot be held that the assessee has introduced his own unaccounted money by way of bogus long term capital gain. The Hon'ble Rajasthan High Court in case of CIT vs. Smt. Pooja Agrawal (supra) has upheld the finding of the Tribunal on this issue in para 12 as under:-
16 ITA Nos. 819/Kol/2018,Vipul Patel & Ors. AY 2014-15 & Ors.
"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. 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 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 Purohit. 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."17 ITA Nos. 819/Kol/2018,
Vipul Patel & Ors. AY 2014-15 & Ors.
13. I note that the sale of shares of M/s. KAFL which was dematerlized in Demat account has taken place through recognised stock exchange and assessee received money through banking channel. So, assessee has explained the nature and source of the money with supporting documents and thus has discharged the onus casted upon him by producing the relevant documents mentioned in para 6 (supra), accordingly, the question of treating the said gain as unexplained cash credit under section 68 of the Act cannot arise unless the AO is able to find fault/infirmity with the same. I note that the source of the receipt of the amount has been explained and the transaction in respect of which the said amount has been received by assessee has not been cancelled by the stock exchange/SEBI. So, it is difficult to countenance the action of AO/Ld. CIT(A) in the aforesaid facts and circumstances explained above.
14. Even assuming that the brokers may have done some manipulation then also the assessee cannot be held liable for the illegal action of the brokers when the entire transactions have been carried out through banking channels duly recorded in the Demat accounts with a Government depository and traded on the stock exchange unless specific evidence emerges that the assessee was in hand in gloves with the broker for committing the unscrupulous activity to launder his own money in the guise of LTCG.
15. There is also nothing on record which could suggest that the assessee gave his own cash and got cheque from the alleged brokers/buyers. The assessment refers also to some third party statement of Shri Sunil Dokania which was admittedly recorded behind the back of the assessee and the assessee has neither been allowed to cross examine this person by the assessee nor the statement of Shri Sunil Dokania furnished to assessee, so the statements even if adverse against the assessee cannot be relied upon by the AO to draw adverse inference against the assessee (Reliance on Hon'ble Supreme Court decision in Andaman Timber (supra) and in the light of the documents to substantiate the claim of LTCG, which has not been found fault with by the AO.
18 ITA Nos. 819/Kol/2018,Vipul Patel & Ors. AY 2014-15 & Ors.
16. Let us look at certain judicial decisions on similar facts:-
17. The case of the assessee's is similar to the decision of Hon'ble Bombay High Court, Nagpur Bench in CIT vs. Smt. Jamnadevi Agrawal & Ors. dated 23rd September, 2010 reported in (2010) 328 ITR 656 wherein it was held that:
"The fact that the assessees in the group have purchased and sold shares of similar companies through the same broker cannot be a ground to hold that the transactions are sham and bogus, especially when documentary ITA Nos. 93 to 99/RPR/2014 & C.O. Nos. 12 to 18/RPR/2014 . A.Y. 2004-05 10 produced to establish the genuineness of the claim. From the documents produced, it is seen that the shares in question were in fact purchased by the assessees on the respective dates and the company has confirmed to have handed over the shares purchased by the assessees. Similarly, the sale of the shares to the respective buyers is also established by producing documentary evidence. It is true that some of the transactions were off-market transactions. However, the purchase and sale price of the shares declared by the assessees were in conformity with the market rates prevailing on the respective dates as is seen from the documents furnished by the assessees. Therefore, the fact that some of the transactions were off-market transactions cannot be a ground to treat the transactions as sham transactions. The statement of the broker P that the transactions with the H Group were bogus has been demonstrated to be wrong by producing documentary evidence to the effect that the shares sold by the assessees were in consonance with the market price. On perusal of those documentary evidence, the Tribunal has arrived at a finding of fact that the transactions were genuine. Nothing is brought on record to show that the findings recorded by the Tribunal are contrary to the documentary evidence on record. The Tribunal has further recorded a finding of fact that the cash credits in the,bank accounts of some of the buyers of shares cannot be linked to the assessees. Moreover, yn the light of the documentary evidence adduced to show that the shares purchased and sold by the assessees were in conformity with the market price, the Tribunal recorded a finding of fact that the cash credits in the buyers' bank accounts cannot be attributed to the assessees. No fault can be found with the above finding recorded by the Tribunal. Therefore, the decision of the Tribunal is based on finding of facts. No substantial question of law arises from the order of the Tribunal.--Asstt. CIT vs. Kamal Kumar S. Agrawal (Indl.) & Ors. (2010) 41 DTR (Nag) (Trib) 105: (2010) 133 TTJ (Nag) 818 affirmed; Sumati Dayal vs. CIT (1995) 125 CTR (SC) 124: (1995) 80 Taxman 89 (SC) distinguished."
12. The Hon'ble High Court of Rajasthan in CIT vs. Smt. Pushpa Malpani - reported in (2011) 242 CTR (Raj.) 559; (2011) 49 DTR 312 dismissed the appeal of department observing 'Whether or not there was sale of shares and receipt of consideration thereof on appreciated value is essentially a question of fact. CIT(A) and Tribunal have both given reasons in support of their findings and have found that at the time of transactions, the broker in question was not banned by SEBI and that assessee had produced copies of purchase bills, contract number share certificate, application for transfer of share certificate to demat account along with copies of holding statement in demat account, balance sheet as on 31st March, 2003, sale bill, bank account, demat account and official report and quotations, of Calcutta Stock Exchange Association Ltd. on 23rd July, 2003. Therefore, 'the prese/itdppeal does not raise any question of law, much less any substantial question of law."
18. The Hon'ble High Court of Punjab and Haryana in the case of Anupam Kapoor 299 ITR 0179 has held as under:-
19 ITA Nos. 819/Kol/2018,Vipul Patel & Ors. AY 2014-15 & Ors.
"The Tribunal on the basis of the material on record, held that purchase contract note, contract note for sates, distinctive numbers of shares purchased and sold, copy of share certificates and the quotation of shares on the date of purchase and sale were sufficient material to show that the transaction was not bogus but a genuine transaction. The purchase of shares was made on 28th April, 1993 i.e.. asst. yr. 1993-94 and that assessment was accepted by the Department and there was no challenge to the purchase of shares in that year. It was also placed before the relevant AO as well as before the Tribunal that the sale proceeds have been accounted for in the accounts of the assessee and were received through account payee cheque. The Tribunal was right in rejecting the appeal of the Revenue by holding that the assessee was simply a shareholder of the company. He had made investment in a company in which he was neither a director nor was he in control of the company. The assessee had taken shares from the market, the shares were listed and the transaction took place through a registered broker of the stock exchange. There was no material before the AO, which could have lead to a conclusion that the transaction was simplicitier a device to camouflage activities, to defraud the Revenue. No such presumption could be drawn by the AO merely on surmises and conjectures. In the absence of any cogent material in this regard, having been placed on record, the AO could not have reopened the assessment. The assessee had made an investment in a company, evidence whereof was with the AO. --Therefore, the AO could not have added income, which was rightly deleted by the CIT(A) as well as the Tribunal. It is settled law that suspicion, howsoever strong cannot take the place of legal proof. Consequently, no question of law, much less a substantial question of law, arises for adjudication.-- C. Vasantlal & Co. vs. CIT (1962) 45 ITR 206 (SC), M.O. Thomakutty vs. CIT (.1958) 34 ITR 501 (Ker)) and Mukand Singh vs. Sales Tax Tribunal (1998) 107 STC 300 (Punjab) relied on; Umacharan Shaw &Bros. vs. CIT (1959) 37 ITR 271 (SC) Applied; Jaspal Singh vs. CIT (2006) 205 CTR (P & H) 624 distinguished"
19. The Co-ordinate Bench of Ahmedabad in the case of Smt. Sunita Jalan Vs. ITO in ITA Nos. 501 & 502/Ahd/2016 dated 09.03.2017 had the occasion to consider a similar issue which was wherein the assessment was framed on the strength of the statement of a broker. The relevant part reads as under:-
"14. The entire assessment is based upon the statement of Shri Mukesh Choksi. It is an undisputed fact that neither a copy of the statement was supplied to the assessee nor any opportunity of cross-examination was given by the Assessing Officer/CIT(A). The Hon'ble Supreme Court in the case of Andaman Timber Industries in Civil Appeal No. 4228 of 2006 was seized with the following action of the Tribunal:-
"6. The plea of no cross examination granted to the various dealers would not help the appellant case since the examination of the dealers would not bring out any material which would not be in the possession of the appellant themselves to explain as to why their ex factory prices remain static. Since we are not upholding and applying the ex factory prices, as we find them contravened and not normal price as envisaged under section 4(1), we find no reason to disturb the Commissioners orders."
15. The Hon'ble Apex Court held as under:-
20 ITA Nos. 819/Kol/2018,Vipul Patel & Ors. AY 2014-15 & Ors.
"According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross- examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their exfactory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them.
As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross- examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17.03.2005 was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions.
In view the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the Show Cause.
We, thus, set aside the impugned order as passed by the Tribunal and allow this appeal."
16. On the strength of the aforementioned decision of the Hon'ble Supreme Court, the assessment order has to be quashed.
17. Even on facts of the case, the orders of the authorities below cannot be accepted. There is no denying that consideration was paid when the shares were purchased. The shares were thereafter sent to the company for the transfer of name. The company transferred the shares in the name of the assessee. There is nothing on record which could suggest that the shares were never transferred in the name of the assessee. There is also nothing on record to suggest that the shares were never with the assessee. On the contrary, the shares were thereafter transferred to demat account. The demat account was in the name of the assessee, from where the shares were sold. In our understanding of the facts, if the shares were of some fictitious company which was not listed in the Bombay Stock Exchange/National Stock Exchange, the 21 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
shares could never have been transferred to demat account. Shri Mukesh Choksi may have been providing accommodation entries to various persons but so far as the facts of the case in hand suggest that the transactions were genuine and therefore, no adverse inference should be drawn.
18. In the light of the decisions of the Hon'ble Supreme Court in the case of Andaman Timber Industries (supra) and considering the facts in totality, the claim of the assessee cannot be denied on the basis of presumption and surmises in respect of penny stock by disregarding the direct evidences on record relating to the sale/purchase transactions in shares supported by broker's contract notes, confirmation of receipt of sale proceeds through regular banking channels and the demat account.
19. Accordingly, we direct the A.O. to treat the gains arising out of the sale of shares under the head capital gains- "Short Term" or "Long Term" as the case may be. The other grievance of the assessee becomes infructuous."
20. The Co-ordinate Bench of Delhi in the case of Meenu Goel Vs. ITO, (2018) 94 taxmann.com 158 (Del. Tri) had the occasion to consider a similar issue which was wherein the assessment was framed on the strength of the statement of a broker. The relevant part reads as under:-
"4. The issue in short is this: The assessee purchased shares of a company during the assessment year 2006-07 at Rs. 11/- and sold the same in the assessment year 2008-09 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 AO 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 assessee's income from undisclosed sources. In ITA-18- 2017 also the CIT(Appeals) and the Tribunal held that the AO 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 receipt 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 judgment 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(A) and the Tribunal. Firstly, the documents on which the AD relied upon the appeal were not put to the Assessee during the assessment proceedings. The CIT(A) 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."
7. Keeping in view of the facts and circumstances of the case as explained above and respectfully following the precedent, as aforesaid, the addition amounting Rs. 18,46,600/-
22 ITA Nos. 819/Kol/2018,Vipul Patel & Ors. AY 2014-15 & Ors.
made by the AO and confirmed by the Ld. CIT(A) is hereby deleted and ground raised by the assessee is allowed.
8. In the result, the appeal of the assessee is allowed."
21. I note that the Ld. DR had relied on 23 judicial pronouncements in support of its case of treatment of the transactions in shares and securities, which resulted in STCL, LTCG etc. as bogus/sham transactions. I note that the said judicial pronouncements are all distinguishable on facts as well as on law. The said decisions are dealt with herein below in seriatim as under:
1. Ratnakar M. Pujari vs. Assessee -ITA No.995/Mum/2012, Order dt. 3rd August, 2016 [AY 2006-07] -ITAT Mumbai In this case the ITAT, Mumbai Bench were considering a case where the purchases of shares were treated as bogus and sham transactions by the Revenue in the immediately preceding financial year 2005-06 and the said findings of the AO with respect to bogus and sham purchases were not challenged by the Assessee. In such facts of the case the Tribunal had treated the exempt long term capital gains arising on sales of shares as bogus and sham.
However, there is no such finding of fact in the instant case and thus the facts in the instant case are distinguishable.
It was brought to my notice that the aforesaid order of ITAT, Mumbai, inter-alia, had been distinguished by Co-ordinate Benches of the Tribunal in the following cases:
a. Kaushalya Agarwal vs. ITO [ITA No.194/Ko/2018, Order dt. 03.06.2019 (Kol, ITAT)] b. Meenu Goel vs. ITO [2018] 94 taxmann.com 158 (Del-Trib)
2. Ritu Sanjay Mantry vs. ITO - ITA No.2003/Mum/2017, Order dt. 9th February, 2018 -
ITAT Mumbai In this case is that was reopened by the AO on the basis of information received from office of DGIT (C&IB), New Delhi that the assessee had taken accommodation entry from M/s. Magasagar Securities Pvt. Ltd. (a company in the Mahasagar Securities Pvt. Ltd. group share scam case) of Rs.10,32,289/-. Subsequently the assessment was completed u/s. 147 r.w.s. 143(3) of the Act after making an addition of Rs.10,39,289/- on account of bogus share transactions and Rs.20,786/- being commission paid to the broker for arranging accommodation entries in the form of share transactions. The AO had given a finding that 23 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
the assessee had taken entries from Mahasagar Securities Pvt. Ltd. involved in the shares scam case for Rs.10,39,289/- for bogus speculation profit during the financial year 2007 -
08. It was further found by the AO that the assessee has paid cash of equivalent amount and received back by cheque and bogus contract notes and bills for the transactions not actually rooted through stock exchange. It is noted that the ITAT, Mumbai had relied upon and followed the judgment of Hon'ble Bombay High Court in Sanjay Bimalchand Jain v. PCIT, Order dated 10.04.2017 (Bom.), being judgment of Jurisdictional High Court. However, in this case, the AO observed that the assessee had taken entries and paid cash of equivalent amount and received back by cheque. And on the basis of such adverse inference, the Tribunal confirmed the addition made by the AO. However, in the present case in hand, there is no such finding made by the AO.
Further. It is noted that the abovementioned judgment of ITAT, Mumbai Bench has been considered and distinguished by the ITAT, Kolkata Benches and other Benches of the Tribunal, inter-alia, in the following cases:
a. Satyanarayan Saria vs. ITO [ITA No.1224/KoIl2016, Order dt. 28.06.2019 (Kol ITAT)] b. Kaushalya Agarwal vs. ITO [ITA No.194/KoIl2018, Order dt. 03.06.2019 (Kol, ITAT)] c. Meenu Goel vs. ITO [2018] 94 taxmann.com 158 (Del-Trib) Reference is also made to the recent judgment dated 01.07.2019 rendered by this Tribunal in the case of Aparna Misra Vs. ITO (ITA No. 161/Kol/2019) wherein the Tribunal had relied upon the following jurisdictional Calcutta High Court judgments to decide similar issue in favour of the assessee.
i) M/s Classic Growers Ltd. vs. CIT [ITA No. 129 of 2012]
ii) CIT vs. Lakshmangarh Estate & Trading Co. Limited [2013] 40 taxmann.com 439
(Cal)
iii) CIT V. Shreyashi Ganguli [ITA No. 196 of 2012]
iv) CIT V. Rungta Properties Private Limited [ITA No. 105 of 2016]
v) CIT V. Andaman Timbers Industries Limited [ITA No. 721 of 2008]
vi) CIT V. Bhagwati Prasad Agarwal [2009- TMI-34738-ITA No. 22 of 2009, Order dt.
29.4.09]
24
ITA Nos. 819/Kol/2018,
Vipul Patel & Ors. AY 2014-15 & Ors.
3) Coming to the case of ITO vs. Shamim M. Bharwani (2016) 69 taxmann.com (Mum
ITAT), Order dt. 27.03.2015 of Mumbai Triabunal, the brief facts in this case was that the assessee purchased 2500 shares of Emrald Commercial Ltd. (ECl). The purchase was in cash. According to the AO since the purchase was made in cash, the same was not verifiable. Further, the A.O. found that said transaction was not through the stock exchange.
The shares were in a nondescript company, with no financial and/or physical assets of value or reported earnings. The shares, purchased at an average rate of Rs. 21.70 per share in May 2004, went up to as much as from Rs. 465 to Rs. 489 in July, 2005, i.e., just over years' time. Each of these incidents matched with that which could be expected in a case of a transaction in a penny stock, the modus operandi of the transactions in which was also listed by the AO. Accordingly, relying on the decisions by the apex court in the case of Sumati Dayal v. CIT [1995] 214 ITR 801/80 Taxman 89 (SC); Durga Prasad More v. CIT [1971] 182 ITR 540 (SC) and MC. Dowell & Co. Ltd. v. CTO [1985] 154 ITR 148/22 Taxman 11 (SC), besides by the Tribunal in the case of Asstt. CIT v. Som Nath Maini [2006] 7 SOT 202 (Chd.), he assessed the impugned credit of Rs. 12.15 lacs as unexplained income u/s. 68 of the Act. The Tribunal confirmed the addition observing that the purchase of shares was off market purchase not reported in the stock exchange. Further, it was observed by the Tribunal that the purchase was through a back date contract note in cash and, there was no trail. Thus it is noted that Tribunal in this case confirmed the addition on a factual finding that the purchase was through a back dated contract note in cash and, there was no trail. This fact is not applicable in the present case.
Further, it is noted that the abovementioned judgment of Tribunal, Mumbai Bench was considered/distinguished by the Mumbai ITAT in its following judgments while allowing similar issue in favour of the Assessee:
a. DCIT vs. Anil Kainya [ ITA Nos.4077 & 4078/MUM/2013, Order dt. 22.03.16 Mum ITAT)] b. Anjali Pandit vs. ACIT [2017] 88 taxmann.com 657 (Mumbai - Trib.) 25 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
Further, it is noted that lthe said judgment has been considered/distinguished by the Kolkata and other Benches of the Tribunal, inter-alia, in the following cases while allowing similar issue in favour of the assessee.
a. Kaushalya Agarwal vs. ITO [ITA No.194/Kol/2018, Order dt. 03.06.2019 (Kol ITAT)] b. Anupama Garg vs. ITO [ITA NO.5971/0el/2018, Order dt. 12.12.2018 (Del, ITAT)] c. Radhika Garg. vs. ITO [ITA No.4738/0el/2018, Order dt. 01.01.2019 (Del-Trib)
4. Coming to the case of Vidya Reddy - ITA No.126/Chny/2017 -Chennai ITAT had disallowed the claim of exempt LTCG and had confirmed the addition made on the ground that the assessee has not placed any material before the lower authorities to prove that her transactions are genuine. The Tribunal observed "She has also not placed any material to prove that her claim of exemption u/s. 10(38) is genuine and valid." However, in the case of the assessee company all relevant documents were furnished to support purchases as well as sale of shares. Further, the Chennai Tribunal had relied upon and followed the judgment of Hon'ble Bombay High Court in Sanjay Bimalchand Jain Vs. PCIT, order dated 10.04.2017, which judgment has been considered and distinguished by Kolkata and other Benches of the Tribunal, inter-alia, in the following cases:
a. Satyanarayan Saria vs. ITO [ITA No.1224/Kol/2016, Order dt. 28.06.2019 (Kol ITAT)] b. Kaushalya Agarwal vs. ITO [ITA No.194/Kol/2018, Order dt. 03.06.2019 (Kol, ITAT)] c. Meenu Goel vs. ITO [2018] 94 taxmann.com 158 (Del-Trib) Reference is also made to the recent judgment dated 1st July, 2019 rendered by the Tribunal in the case of Aparna Misra vs. ITO [ITA No.161/KoIl2019] wherein the Tribunal had relied upon the Jurisdictional Calcutta High Court judgments, as mentioned hereinabove.
5. M. K. Rajeshwari vs. ITO [2018] 99 taxmann.com 339 - The Bangalore Tribunal noted the acts in this case as the assessee earned long-term capital gain on sale of shares of MARL and claimed exemption on it under section 10(38). The Assessing Officer relying upon the report of the investigation wing, SEBI report and findings/observations of the SIT, concluded that exemption under section 10(38) claimed by the assessee was not acceptable and the act of the assessee in purchasing the penny stock shares and sale of fee within the ambit of adventure in the nature of trade. Consequently, amount in question was liable to be taxed under the head 'business income'. The Tribunal confirmed the addition by observing 26 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
that the department had brought sufficient material on record to demonstrate that unaccounted money was introduced in the books of account through long-term capital gain by adopting such method.
It is noted that in the aforesaid case, the Tribunal confirmed the addition on a factua1 finding that the department had brought sufficient material on record to demonstrate that unaccounted money was introduced in the books of account through long-term capital gain by adopting such method. This fact is not applicable in the present case. Further, the abovementioned judgment has been considered/distinguished by this Tribunal, inter-alia, in the following cases while allowing similar issue in favour of the Assessee:
a. Kaushalya Agarwal vs. ITO [ITA No.194/Kol/2018, Order dt. 03.06.2019 (KoI ITAT)] b. Yogesh Dalmia vs. ACIT [ITA No.113/Kol/2018, Order dt. 03.06.2019 (KoI ITAT)] c. Navin Kumar Kajaria vs. ACIT [ITA No.1254-55/Kol/2018, Order dt. 03.04.2019 (Kol- Trib) d. Soumitra Choudhury vs. ACIT [ITA No.256/Kol/2019, Order dt. 15.03.2019 (Kol ITAT)]
6. Coming to the case of Abhimanyu Soin [2018-TIOL-733-ITAT-CHD - The Chandigarh Bench of Tribunal had confirmed the addition made by AO after observing that "11. The assessee has failed to prove that the purchase and sale transactions are genuine and could not even furnish and iota of evidence regarding the sale of shares .............". However, in the case of the Assessee Company all relevant documents were furnished to support, and prove beyond all doubts, purchases and as well as sale of shares, which was evidently absent in that case, so is not applicable to case in hand.
7. Coming to the case of Balbir Chand Maini Vs. CIT (2011) 12 taxmann.com 276 (P&H) - The Hon'ble Punjab & Haryana High Court had confirmed the addition made by Assessing Officer on the basis of finding of fact by the Tribunal:
"10. The Tribunal while adjudicating the issue against the assessee had recorded a finding of fact that the transaction of sale and purchase of shares of M/s. Ankur International Ltd., was not a genuine transaction, a part where of relevant to the present issue, mentioned in para Nos. 27 and 28 of the order, reads as under ...."
However, in the case of the Assessee Company all relevant documents were furnished to support, and prove beyond all doubts, purchases and as well as sale of shares.
27 ITA Nos. 819/Kol/2018,Vipul Patel & Ors. AY 2014-15 & Ors.
Further this judgment has been considered and distinguished by this Tribunal and other Benches of the Tribunal, inter-alia, in the following cases while allowing similar issue in favour of the Assessee:
a. Kaushalya Agarwal vs. ITO [ITA No.194/Kol/2018, Order dt. 03.06.2019 (Kol ITAT)] b. Kamal Singh Kundalia vs. ITO [ITA No.2359/Kol/2017, Order dt. 08.05.2019 (Kol ITAT)] c. Meenu Goel vs. ITO [2018] 94 taxmann.com 158 (Del-Trib)
8. Coming to the case of Chandan Gupta Vs. CIT (2015) 54 taxmann.com 10 (P&H) - The Hon'ble Punjab & Haryana High Court had confirmed the addition made by Assessing Officer on the basis of finding of fact by the Tribunal that the assessee had failed to prove the genuineness of the transaction of sale and purchase of shares. The relevant observation is as under:
" ..... On appreciation of the evidence, the Tribunal held that the assessee had failed to prove the genuineness of the transaction of sale and purchase of shares. Once the transaction of purchase and sale was found to be bogus then the sale proceeds had to be added as income of the assessee under Section 68 of the Act because the money received on the basis of bogus transaction had been credited by the assessee in the books of account which remained unexplained.
9. In view of the findings of fact recorded by the authorities below which could not be demonstrated to be erroneous or perverse in any manner, no interference is called for.
"
However, in the instant case of the Assessee company all relevant documents were furnished to support and prove beyond all doubts, purchases as well as sale of shares. Further this judgment has been considered and distinguished by this Tribunal and other Benches of the Tribunal, inter-alia, in the following cases while allowing similar issue in favour of the Assessee:
a. Kaushalya Agarwal vs. ITO [ITA No.194/Kol/2018, Order dt. 03.06.2019 (Kol, ITAT)] b. Kamal Singh Kundalia vs. ITO [ITA No.2359/Kol/2017, Order dt. 08.05.2019 (Kol ITAT)] c. Meenu Goel vs. ITO [2018] 94 taxmann.com 158 (Del-Trib)
9. Coming to the case of CIT vs. Sunita Dhadda (Hon'ble Supreme Court judgment dated 06.06.2018), it is noted that this judgment relied upon by the department has no application in the facts of the instant case. The contention of Ld. DR that matter should be 28 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
set aside to AO for supplying the Assessee with Investigation Wing Report and statements of parties relied upon cannot be applied in each and every case. The assessee company had in the case in hand discharged the onus casted upon it to prove the claim of LTCG/STCL, then it was the bounden duty of the AO to bring out the falsity/fabrication/wrong doing if any on the part of assessee or confront the assessee with any material which is adverse against the assessee and to proceed in accordance to law i.e. in confronting with principle of Natural Justice without doing so, and when assessee placed all documentary evidences before the AO/Ld. CIT(A), the assessee cannot be again sent back before AO and the decision to send back to AO is decided when proper opportunity has not been given by AO during assessment stage and that is not the case here in the case in hand.
10. Coming to the following cases. I note that in these cases given below Mahendra Kumar Bhandari vs. ITO [Order dt. 06.04.2018] Aravind Kumar, Chennai vs. ITO [Order dt. 08.11.2018] Vikram Dughar, Chennai vs. ITO [Order dt. 13.11.2018] Sadhana, Bangalore vs. ITO [Order dt. 26.05.2017] Arun Kumar Bhaiya, New Delhi vs. ITO [Order dt. 30.08.2018] Natti Singh HUF, Jaipur vs. ACIT [Order dt. 31.10.2018] Vinod J. Sharma, Thane [Order dt. 28.10.2015] All the matters were set aside to the file of the AO for fresh consideration and/or to confront the Assessee with the adverse materials used against him. The matters in each of the said cases were set aside in the specific facts and circumstances of each of the cases were set aside in the specific facts and circumstances of each of the cases wherein all facts were not available on record and/or where in the words of the D/R the "AO has botched up enquiry". However, in the case in hand there is no occasion for setting aside the matter in as much as the assessee had furnished all relevant documents, materials and/or evidence to support its transactions of purchase and as well as sale of shares and the AO had failed to point out any defect and/or lacuna in the said documents, materials and/or evidence. Further, this Tribunal in its orders had decided similar issue in favour of the assessee by relying on binding judicial pronouncements. Reference is also made to the recent judgment dated 1st July, 2019 rendered by the Tribunal in the case of Aparna Miwsra, supra wherein 29 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
the Tribunal had relied upon the following jurisdictional Calcutta High Court judgments to decide similar issue in favour of the assessee.
i) M/s Classic Growers Ltd. vs. CIT [ITA No. 129 of 2012]
ii)CIT vs. Lakshmangarh Estate & Trading Co. Limited [2013] 40 taxmann.com 439 (Cal)
iii) CIT V. Shreyashi Ganguli [ITA No. 196 of 2012]
iv) CIT V. Rungta Properties Private Limited [ITA No. 105 of 2016]
v) CIT V. Andaman Timbers Industries Limited [ITA No. 721 of 2008]
vi) CIT V. Bhagwati Prasad Agarwal [2009- TMI-34738-ITA No. 22 of 2009, Order dt. 29.4.09]
11. Coming to the cases given below Prem Jain vs. ITO [ITAT, Delhi, Order dt. 22.03.2018] Sanjay Bimalchand Jain vs. PCIT [2018] 89 taxmann.com 196 (Bom) The decisions of these cases had been relied upon by D/R to contend that gains from sale of shares should be assessed as "Business income" and not under the head "Capital Gains". It is noted that the Learned D/R is trying to put forward a completely new argument which do not emanate out of the orders of the lower authorities and also from the records of the case and thus is not permissible to be raised as this stage.
Even otherwise, the ITAT, Delhi Bench in Prem Jain (supra) had held when the facts of the case was that the Assessee had claimed the income from sale of shares to be assessed at business profits and not capital gains where there was short duration of holding of shares and lack of clarity in account books, sale and purchase of shares. In such facts of the case, it was held that profits from sale of shares would amount to business income and not short term capital gain. However, no such case had been made out by the Assessing Officer in the instant cases.
The aforesaid order has been considered by this Tribunal while deciding similar issue in favour of an assessee in the case of Kaushalya Agarwal Vs. ITO (ITA No. 194/Kol/2018, order dated 03.06.2019 (ITAT, Kol).
More particularly, the judgment of Hon'ble Bombay High Court in Sanjay Bimalchand Jain V. PCIUT, order dated 10.04.2017 (Bom HC) had been considered and distinguished by this Tribunal and other benches of the Tribunal, inter-alia, in the following cases:
30 ITA Nos. 819/Kol/2018,Vipul Patel & Ors. AY 2014-15 & Ors.
a. Satyanarayan Saria vs. ITO [ITA No.1224/Kol/2016, Order dt. 28.06.2019 (Kol ITAT)] b. Kaushalya Agarwal vs. ITO [ITA No.194/Kol/2018, Order dt. 03.06.2019 (Kol, ITAT)] c. Meenu Goel vs. ITO [2018] 94 taxmann.com 158 (Del-Trib)
12. Coming to the cases given below:
ACIT vs. Madhuri Sunil Kotecha [ITAT, Pune, Order dt. 28.03.2018] Charu Agarwal, Meerut vs. ITO [ITAT, Delhi, Order dt. 10.09.2018] Dayaram Khandelwal vs. PCIT [MP High Court, Order dt. 01.03.2018] Sourabh Khandelwal vs. PCIT [MP High Court, Order dt. 01.03.2018] It is noted that in all of these cases relates to imposition of penalty under section 271(1)(c) of the Act in the facts where the Assessee had withdrawn/surrendered his/her claim of exempt L TCG u/s. 10(38) of the Act and paid taxes on the gains arising from sale of shares. All these judgments are irrelevant and has no application to the facts of the instant case before the Tribunal.
13. Coming to the case of SEBI v. Rakhi Trading P. Ltd [Civil Appeal No.1969 of 2011, Judgment dated 8th February, 2018 (of the Hon'ble Supreme Court ) It is noted that the Hon'ble Supreme Court was concerned with a case where SEBI had initiated actions against few traders and brokers for violation of Regulations 3(a), (b) and (c) and 4 (1), (2)(a) and (b) of the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 ("the PFUTP Regulations"). In the said case, the Hon'ble Apex Court upheld the action initiated in the case of traders as the said traders have admitted of being involved in synchronized trade to manipulate the prices of shares. There is no such admission by the Assessee in the instant case that it has involved in any price manipulation and/or any dubious tax planning. Moreover, the Hon'ble Apex Court had set aside the action initiated by SEBI in the case of brokers as there was no evidence on record to show involvement of the said brokers. Similarly in the instant cases the department had failed to bring on record any evidence whatsoever to show that the Assessee was involved in any price manipulations. Thus the judgment of the Hon'ble Supreme Court is clearly distinguishable on facts. The said judgment had been held to be distinguishable by the ITAT, Kolkata Benches in the following judgments:-
i. Suman Saraf v. ITO in ITA No.1395/KoI/2018, Order dated 05.10.2018.31 ITA Nos. 819/Kol/2018,
Vipul Patel & Ors. AY 2014-15 & Ors.
ii. Jignesh Desai v. ITO in ITA No.1394/KoI/2018, Order dated 05.10.2018. iii. Rishab Jain v. ITO in ITA No.1392/KoI/2018, Order dated 05.10.2018. iv. Rekha Devi v. ITO in ITA NO.1269/KoI/2018, Order dated 05.10.2018. v. Sunita Devi v. ITO in ITA No. 1268/Ko1/2018, Order dated 05.10.2018. vi. Jagat Lal Jain v.ITO in ITA No.1226/KoI/2018, Order dated 05.10.2018. vii. Sneha Choudhary v. ITO in ITA NO.1218/KoI/2018, Order dated 05.10.2018. viii. U.C.Choudhary & Ors (HUF) v. ITO in ITA No.1217/KoI/2018, Order dated 05.10.2018.
ix. Virendara Barmecha v. ITO in ITA No.1201/KoI/2018, Order dated 05.10.2018. x. Taruna Devi Barmecha v. ITO in ITA No.1199/KoI/2018, Order dt. 05.10.2018. xi. Premlata Agarwal vs. ITO in ITA No.874/KoI/2018, Order dt. 05.10.2018. xii. Sunil Kumar Ladha vs. ITO in ITA No.851/KoI/2018, Order dt.05.10.2018. xiii. Balram Gupta vs. ITO in ITA No.817/KoI/2018, Order dt.05.10.2018. xiv. Alka Changoiwala vs. ITO in ITA No.634/KoI/2018, Order dt.05.10.2018. xv. Santosh Choraria vs. ITO in ITA NO.521/KoI/2018, Order dt.05.10.2018. xvi. Sonal Bajaj vs. ITO in ITA No.239/KoI/2018, Order dt.05.10.2018. xvii. Sudha Khandelwal v. ITO in ITA No.86/KoI/2018, Order dt. 05.10.2018. xviii. Bina Agarwal vs. ITO in ITA NO.1403/KoI/2018, Order dt.05.1 0.2018. xix. Harish Jain vs. ITO in ITA No. 1404/Ko1/2018, Order dt.05.10.2018. Thus, it is noted that aforesaid decision of the Hon'ble Supreme Court, Hon'ble Bombay High Court and Tribunal are distinguishable and so the ratio is not applicable to the case/cases in hand.
22. It is clear from the above that the facts of the case of the assessee are identical with the facts in the above case wherein the co-ordinate bench of the Tribunal has deleted the addition in the case of Shri Manish Baid (supra) in respect of sale of shares of M/s KAFL. I, therefore, respectfully following the same and the facts in the instant case as taken note in para 8 supra and discussions, I am inclined to set aside the order of Ld. CIT(A) and direct the AO not to treat the long term capital on sale of shares of M/s KAFL as bogus and delete the consequential addition. Therefore, the appeal of assessee is allowed.
32 ITA Nos. 819/Kol/2018,Vipul Patel & Ors. AY 2014-15 & Ors.
23. Now, I would like to do the same exercise to find out the facts in respect to each cases given in the cause title. First we take up the case of Pankaj Kumar Verma Vs. ITO, ITA No. 2163/Kol/2018, the Ld. AR Shri Subash Agarwal, Advocate painstakingly took me through the purchase contract note/bill placed at page 14 of the paper book wherein I note that assessee had purchased 55,000 shares of M/s. KAFL and sold it which is evident from the sale contract note placed at pages 18 to 22 of the paper book. I have also gone through the demat statement found placed at pages 27 to 28 of the paper book and bank statement which is found placed at pages 15, 23 to 25 of the paper book which shows that the purchase and sale consideration have passed through the banking channel.
24. In respect of Smt. Manju Devi Mundhra Vs. ITO, ITA No. 2354/Kol/2018, the Ld. AR Shri Subash Agarwal, Advocate has taken me through the purchase contract note/bill placed at page 10 of the paper book wherein I note that assessee had purchased 40,000 shares of M/s. KAFL and sold it which is evident from the sale contract note placed at pages 6 to 7 of the paper book. I have also gone through the demat statement found placed at pages 12 to 14 of the paper book and bank statement which is found placed at pages 8 and 11 of the paper book which shows that the purchase and sale consideration have passed through the banking channel.
25. In respect of Smt. Krishna Devi Mundhra Vs. ITO in ITA No.2356/Kol/2018, the Ld. AR Shri Subash Agarwal, Advocate has taken me through the purchase contract note/bill placed at page 13 of the paper book wherein I note that assessee had purchased 40,000 shares of M/s. KAFL and sold it which is evident from the sale contract note placed at pages 6 to 7 of the paper book. I have also gone through the demat statement found placed at pages 15 to 18 of the paper book and bank statement which is found placed at pages 8 and 14 of the paper book which shows that the purchase and sale consideration have passed through the banking channel.
33 ITA Nos. 819/Kol/2018,Vipul Patel & Ors. AY 2014-15 & Ors.
26. In the case of Smt. Saroj Devi Mundhra Vs. ITO in ITA No. 2355/Kol/2018, the Ld. AR Shri Subash Agarwal, Advocate painstakingly took me through the purchase contract note/bill placed at page 10 of the paper book wherein I note that assessee had purchased 40,000 shares of M/s. KAFL and sold it which is evident from the sale contract note placed at pages 6 to 7 of the paper book. I have also gone through the demat statement found placed at pages 12 to 15 of the paper book and bank statement which is found placed at pages 8 and 11 of the paper book which shows that the purchase and sale consideration have passed through the banking channel.
27. In the case of Shri Rajesh Jhunjhunwala Vs. ITO in ITA No. 2402/Kol/2018, the Ld. AR Shri Subash Agarwal, Advocate has taken me through the purchase contract note/bill placed at page 9 of the paper book wherein I note that assessee had purchased 1,00,000 shares of M/s. KAFL and sold it which is evident from the sale contract note placed at pages 12 to 16 of the paper book. I have also gone through the demat statement found placed at pages 19 to 22 of the paper book and bank statement which is found placed at pages 10,11, 17 and 18 of the paper book which shows that the purchase and sale consideration have passed through the banking channel.
28. In the case of Shri Rakesh Jhunjhunwala Vs. ITO in ITA No. 2403/Kol/2018, the Ld. AR Shri Subash Agarwal, Advocate painstakingly took us through the purchase contract note/bill placed at page 9 & 10 of the paper book wherein I note that assessee had purchased 1,00,000 shares of M/s. KAFL and sold it which is evident from the sale contract note placed at pages 13 to 18 of the paper book. I have also gone through the demat statement found placed at pages 22 to 24 of the paper book and bank statement which is found placed at pages 11 to0 12 and 19 to 21 of the paper book which shows that the purchase and sale consideration have passed through the banking channel.
29. In the case of Shri Gulab Chand Dudhani Vs. ITO in ITA No. 2405/Kol/2018, the Ld. AR Shri Subash Agarwal, Advocate painstakingly took us through the purchase contract note/bill placed at page 7 of the paper book wherein I note that assessee had purchased 34 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
25,000 shares of M/s. KAFL and sold it which is evident from the sale contract note placed at pages 12 to 14 of the paper book. I have also gone through the demat statement found placed at pages 10,11 and 18 of the paper book and bank statement which is found placed at pages 8 to 9 and 19 to 20 of the paper book which shows that the purchase and sale consideration have passed through the banking channel.
30. In the case of Shri Devi Prasad Dudhani Vs. ITO in ITA No. 2406/Kol/2018, the Ld. AR Shri Subash Agarwal, Advocate painstakingly took us through the purchase contract note/bill placed at page 6 of the paper book wherein I note that assessee had purchased 1,00,000 shares of M/s. KAFL and sold it which is evident from the sale contract note placed at pages 10 to 12 of the paper book. I have also gone through the demat statement found placed at pages 8,9 & 16 of the paper book and bank statement which is found placed at pages 7 & 17 of the paper book which shows that the purchase and sale consideration have passed through the banking channel.
31. In the case of Shri Sailesh Agarwal Vs. ITO in ITA No. 1748/Kol/2018, the Ld. AR Shri Subash Agarwal, Advocate painstakingly took us through the purchase contract note/bill placed at page 4 of the paper book wherein I note that assessee had purchased 25,000 shares of M/s. KAFL and sold it which is evident from the sale contract note placed at pages 7 to 11 of the paper book. I have also gone through the demat statement found placed at pages 17 to 20 of the paper book and bank statement which is found placed at pages 5,12 and 13 of the paper book which shows that the purchase and sale consideration have passed through the banking channel.
32. In the case of Shri Pradeep Kumar Agarwal Vs. ITO in ITA Nos. 1744 & 1745/Kol/2018, the Ld. AR Shri Subash Agarwal, Advocate painstakingly took us through the purchase contract note/bill placed at page 5 (AY 2014-15) and page 6 (AY 2015-16) of the paper book wherein I note that assessee had purchased 50,000 shares for each assessment years of M/s. KAFL and sold it which is evident from the sale contract note placed at pages 9 to 11 (for AY 2014-15) and pages 10 to 15 (for AY 2015-16) of the paper 35 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
book. I have also gone through the demat statement found placed at pages 17 to 21 and 20 to 23 (for AY 2014-15 & 2015-16) respectively of the paper book and bank statement which is found placed at pages 6 to 7 and 12 to 15 and 7 to 8 and 16 to 18 (for AY 2014-15 & 2015-16) respectively of the paper book which shows that the purchase and sale consideration have passed through the banking channel.
33. In the case of Shri Pawan Kumar Agarwal Vs. ITO in ITA No. 1746/Kol/2018, the Ld. AR Shri Subash Agarwal, Advocate painstakingly took us through the purchase contract note/bill placed at page 5 of the paper book wherein I note that assessee had purchased 50,000 shares of M/s. KAFL and sold it which is evident from the sale contract note placed at pages 9 to 11 of the paper book. I have also gone through the demat statement found placed at pages 15 to 18 of the paper book and bank statement which is found placed at pages 6, 7, 12 and 13 of the paper book which shows that the purchase and sale consideration have passed through the banking channel.
34. In the case of Shri Arun Kumar Agarwal Vs. ITO in ITA No. 1747/Kol/2018, the Ld. AR Shri Subash Agarwal, Advocate painstakingly took us through the purchase contract note/bill placed at page 5 of the paper book wherein I note that assessee had purchased 50,000 shares of M/s. KAFL and sold it which is evident from the sale contract note placed at pages 9 to 12 of the paper book. I have also gone through the demat statement found placed at pages 17 to 19 of the paper book and bank statement which is found placed at pages 6, 7, 13, 14 and 15 of the paper book which shows that the purchase and sale consideration have passed through the banking channel.
35. For the reasons given in the lead case i.e. in the case of Shri Vipul Gupta, and the factual findings recorded from para 23 to para 34 supra regarding all other appeals, I find that action of the Ld. CIT(A)/AO cannot be accepted, since the scrip of M/s. KAFL cannot be held to be bogus; and based on the finding of fact supra which are supported by documents which have not been adversely commented upon by AO/Ld. CIT(A) , I am 36 ITA Nos. 819/Kol/2018, Vipul Patel & Ors. AY 2014-15 & Ors.
inclined to allow all the appeals of the assessee and direct the AO to allow the claim of LTCG on sale of scrips of M/s. KAFL in respect of all the assessees.
36. In the result, all appeals of the assessee are allowed Order pronounced in the open court on 7th August, 2019 Sd/-
(A. T. Varkey)
Judicial Member
Dated: 7th August, 2019
Jd. (Sr. PS)
Copy of the order forwarded to:
1 Appellant -Assessees.
2 Respondent - ITO, Ward-45(4), 22(4), 44(3) & 44(2), 45(2), 46(1), 34(3), 34(4), Kolkata., ITO, Ward-3(1), Asansol 3 CIT(A) -13, 6, 14, 10, Kolkata. & CIT(A) - Asansol 4 CIT , Kolkata & Asansol 5 DR, Kolkata Benches, Kolkata /True Copy, By order, Assistant Registrar ITAT, Kolkata Benches