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TMI Blog2019 (11) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... mption 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. As relying on SHRI HEERACHAND KANUNGA VERSUS THE INCOME TAX OFFICER, CHENNAI [ 2018 (6) TMI 1329 - ITAT CHENNAI] remit the issue of exemption in this appeal back to the file of the Assessing Officer for re-adjudication on the lines indicated above. Therefore, the Assessing Officer shall require the assessee to establish who, with whom, how and in what circumstances the impugned transactions were carried out etc., to prove that the impugned transactions are actual, gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gains. The explanation furnished by the assessee is unsatisfactory and hence, assessed the same U/s.68. Aggrieved, the assessee filed an appeal before the CIT(A). The ld.CIT(A) dismissed the appeal. Aggrieved against that order, the assessee filed this appeal. 3. None was present for the assessee. The ld.DR argued the case and supported the orders of the lower authorities. 4. We have considered the submissions of the ld.DR. It is noticed that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndation of the assessment in the present case is the statement of one Shri Ashok Kumar Kayan who has admitted to have provided bogus Long Term Capital Gains to his clients. The said Shri Ashok Kumar Kayan also allegedly seems to have provided the assessee s name and PAN as one of the beneficiaries. However, this statement given by Shri Ashok Kumar Kayan cannot be the foundation for the purpose of assessment in so far as Shri Ashok Kumar Kayan has not been provided to the assessee for cross-examination. In the absence of opportunity of cross-examination, the statement remains mere information and such information cannot be foundation for assessment. 10. Admittedly, the assessee has claimed to have purchased 15000 shares fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e possession of the shares in its physical 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 asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch evidences as required by the AO to substantiate the claim as also by producing the persons through whom the assessee has undertaken the transaction of the purchase and sale of the shares which would include the sub-broker, friend and the broker through whom the transaction has been done, before the AO for examination. 13. In the result, the appeals filed by the assessee in ITA Nos.2786 2787/Chny/2017 are partly allowed for statistical purposes. 6. Respectfully following the above order, on the facts and circumstances of this case, we deem it fit to remit the issue of exemption in this appeal back to the file of the Assessing Officer for re-adjudication on the lines indicated above. Therefore, the As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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