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TMI Blog2019 (9) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... n of all the above aspects, the Assessing Officer concerned would decide the matter in accordance with law. - Decided in favour of assessee for statistical purposes. - I.T.A. No. 406/CHNY/2019, I.T.A. No. 407/CHNY/2019, I.T.A. No. 875/CHNY/2019 - - - Dated:- 5-9-2019 - Shri George Mathan, Judicial Member And Shri S. Jayaraman, Accountant Membe For the Appellant : Shri D. Anand, Advocate For the Respondent : Shri AR.V. Sreenivasan, JCIT ORDER PER BENCH: The above assessees filed these appeals against the orders of the Commissioner of Income Tax (Appeals)-10, Chennai in ITA No.129/17-18/CIT(A)-10, ITA No.127/17-18/CIT(A)-10 both dated 31.12.2018 and ITA No.93/17-18/CIT(A)-10 dated 31.01.2019 for the assessment year 2015-16, respectively. . Since common issues are involved in these appeals, they are heard together and being disposed together, for convenience sake. 2. All these assessees have purchased shares of M/s. CCL International Limited / M/s GCM Securities Ltd, as the case may be, by cash, for a nominal price, off market, from certain brokers Subsequently, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities the Ld. DR supported the orders of the lower authorities and relying on this tribunal decision in the case of Shri Heerachand Kanunga, for assessment years 2010-11 2011- 12 in ITA Nos. 2786 2787/Mds/2017 dated 03.05.2018, the Ld. DR pleaded that these appeals be decided accordingly. 4. We have considered the rival submissions. It is noticed that each of the above the assessee has not been given a fair opportunity to prove the genuineness but the assessment has been made primarily, based on the evidences collected by the Revenue in the course of the investigation conducted by them on the brokers / share broking entities etc. This is not permissible. This being so, in the interests of natural justice, the issue of the genuineness of the transactions require re-adjudication. Since, the right to exemption must be established by those who seek it, the onus therefore lies on the assessee. In order to claim the exemption from payment of income tax, the assessee had to put before the Income Tax authorities proper materials which would enable them to come to a conclusion. (35 ITR 312 (SC)).Thus, the AO must keep in mind that the onus of provin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below are set aside and the entire issue is remitted back to the file of the Assessing Officer. The A.O shall bring on record the role of the assessee in promoting the company and relationship of the assessee with other promoters, role of the assessee in inflating the price of shares, etc.. The Assessing Officer shall also furnish a copy of the report said to be received from the Investigation Wing of the Department at Kolkata to the assessee and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee. 5. Further, perusal of assessee s case shows that it is similar to the facts in the case of Shri Heerachand Kanunga, a decision of the Co-ordinate Bench of this Tribunal made for assessment years 2010-11 2011-12 in ITA Nos. 2786 2787/Mds/2017 dated 03.05.2018 . The relevant portions from that order is extracted as under :- 9. A perusal of the facts in the present case admittedly given room for suspicion. However, assessments are not to be done on the basis of mere suspicion. It has to be supported by facts and the facts are unfortunately not forthcoming in the Assessment Order, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l form? In Para No.8.1 of the Assessment Order, it is mentioned that the assessee is an investor and has been regularly trading in shares. If this is so, does the demat account show such transactions being done by the assessee or is this the only one of transaction. Thus, clearly the facts required for adjudicating the appeals are not forthcoming. There is no evidence whatsoever to show that the assessee has held the shares for more than 12 months. This is because assuming that the demat has been done and the shares of M/s.BPL has come into the assessee s demat account and has immediately flown out. Then the factum of the possession of the shares for more than 12 months have to be proved by the assessee. This is also not forthcoming. In reply to a specific query, as the date of the demat of shares, it was submitted by the Ld.AR that the demat was done on various dates. Then the question rises as to why there is so much of difference in the dates of demating when 15000 shares have been purchased together on 24.04.2008. No details in respect of M/s.BPL company is known, what is the product of the company which had lead to the share value of the company to go up fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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