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TMI Blog2019 (4) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... nst assessee. - ITA No. 3809/DEL/2018, ITA No. 3810/DEL/2018 - - - Dated:- 8-1-2019 - Shri H.S. Sidhu, Judicial Member For the Assessee : Sh. Rohit Aggarwal, CA For the Revenue : Sh. SL Anuragi, Sr. DR. ORDER These appeals by the different assessees are preferred against the respective orders of the Ld. Commissioner of Income Tax [Appeals]-Meerut pertaining to assessment year 2015-16. Since the issues involved in these appeals are common and identical, hence, the appeals were heard together and are being disposed of by this common order for the sake of convenience. The grounds raised in ITA No. 3809/Del/2018 read as under:- 1. That the Id. CIT(A) has erred in law as well as on the facts of the case by confirming the addition of ₹ 22,28,172/-, of the amount of LTCG earned by the appellant on STT paid sales of listed equity shares of M/s CCL International Ltd., ignoring the evidences, documents and case laws relied upon by the appellant, for various reasons including the followings:- a) That the conclusions drawn by the authorities below for making/confirming the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g has been brought on record to show any linking between the alleged entry operators whose statements have been relied upon and the appellant. The evidences and arguments used by the authorities below are generic in nature and can in no sense be related to the appellant. c) That the authorities below have made confirmed the impugned addition without any basis and without brining on record any corroborative material found during the course of assessment proceedings and also by completely ignoring the well established law that no addition can be made solely on the basis of statements recorded on oath during the course of survey conducted by the Investigation Wing of Income Tax, Kolkata and departmentally communicated to the A.O., without making his own independent enquiry and efforts. Thus the additions made solely on the basis of the statements recorded behind the back of the appellant deserve to be deleted. d) That the statement of Sh. Jai Kishan Poddar, as relied upon the Id. A.O. cannot be taken cognizance with, as the same has been recorded at the back of the appellant and no opportunity of cross examination was provided. Further, the statement wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and arguments used by the authorities below are generic in nature and can in no sense be related to the assessee. He further submitted that the addition made was without any basis and without brining on record any corroborative material found during the course of assessment proceedings and also by completely ignoring the well established law that no addition can be made solely on the basis of statements recorded on oath during the course of survey conducted by the Investigation Wing of Income Tax, Kolkata and departmentally communicated to the A.O., without making his own independent enquiry and efforts. Hence, he requested to cancel the orders of the authorities below and allow the appeal of the assessee. In support of his contention, he filed a Paper Book containing pages 1 to 55 in which he has attached the copy of written submissions dated 20.4.2018 as filed before the Ld. CIT(A), Meerut; photocopy of sale note and confirmation from M/s Sai Securities for purchase of shares of M/s CCL International Ltd. as filed before the Ld. CIT(A), Meerut; photocopy of the relevant bank statement of the assessee showing payment for purchase of shares as filed before the CIT(A); photocopy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .20 per share. He further submitted that the payment for purchase of shares has been debited from assessee account through cheque for a sum of ₹ 2,00,000/- was debited whereas the sale note was dated 15.4.2013, which proves that the transaction was an afterthought and the buyer has back dated the transaction. The shares were purchased through off market deals of unknown company. In view of the above assessee failed to prove the genuineness of the alleged long term capital gain claimed to have been earned by the assessee. He further stated that the case laws relied upon by the AO as well as Ld. CIT(A) may be read as his arguments including the decision of the Hon ble Supreme Court of India in the case of Sumati Dayal vs. CIT and in the case of Mc Dowell and Company Limited, 154 ITR 148. 7. I have heard both the parties and perused the records especially the impugned order. I note that the assessee has shown Long Term Capital Gain amounting to ₹ 22,28,172/- earned during the FY 2014-15 and exempt u/s. 10(38) of the I.T. Act, 1961. The assessee was asked to explain the source of aforesaid Long Term Capital Gain during the course of scrutiny proceedings. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital Pvt. Ltd. whcih is one of the entities utilised for providing entry of bogus long term capital gain of M/s CCL International Ltd. who had admitted that he was involved in scam of providing bogus long term capital gains through shares of M/s CCL International Ltd. had also admitted that they were also involved in trading of these Jamakharchi Companies through which manipulative transactions in securities to either artificially raise or lower the market rate of the shares are being done. I also note that the independent findings of the AO, which are corroborated by the information given by the Investigation Wing, the assessee has failed to substantiate the genuineness of alleged share transactions in respect of long term capital gain u/s. 10(38) of the Act. In view of above discussions, the landmark decision of the Hon ble Supreme Court in the case of McDowell and Company Limited, 154 ITR 148 are squarely applicable in this case wherein it has been held that tax planning may be legitimate provided it is within the framework of the law and any colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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