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TMI Blog2020 (4) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... Kol/2019). But the assessee's without trying to cure the defects, had filed another new set of appeals (seven in numbers) which was numbered as ITA Nos. 856-862/Kol/2019. Though there ought to have been only seven appeals, due to the aforesaid action seven more appeals have been filed which means fourteen appeals are altogether listed and heard together. Since the later filed appeals i.e. ITA Nos. 856-862/Kol/2019 have been found to be mistakenly filed, so they are allowed to be withdrawn. 3. Coming to the lead case, i.e. in respect of ITA No. 416/Kol/2019 in Arun Kumar Maheswari Vs. ITO for AY 2014-15 the facts as noted by the AO are that in this year, the assessee has claimed long term capital gains of Rs. 6,21,030/- on sale of shares of M/s. Essar India Limited (M/s. EIL) and claimed also that this amount is exempt u/s. 10(38) of the Act. The AO noted that the assessee had purchased 15,000 shares of M/s. EIL on 23.03.2012 @ Rs. 10.80 per share for a consideration of Rs. 1,62,150/- and sold the said shares for a gross sale consideration of Rs. 15,66,360/- through transactions on various dates. The AO issued notice u/s. 133(6) to the Pr. Officer, Essar India Ltd. and obtained Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny time) often it goes 500 to 1000 times. This is done through low volume transaction indulged in by the dummies of the operator at a pre-determined price. When the price reaches the desired level, the beneficiary who bought the shares at a nominal price are made to sell it to a dummy company of the operator. For this, unaccounted cash is provided by the beneficiary, which is routed through a few layers of paper companies by the operator and finally is parked with the dummy paper company that will buy the shares. According to AO, the Directorate of Investigation, Kolkata investigated transactions in 84 (Eighty Four) such penny stock listed on BSE and examined on oath a large number of brokers, directors of companies that finally purchased the shares, the promoters of Penny Stock Companies, the entry operators who managed the dummy companies involved in price rigging. According to AO, the Director of Investigation examined the money trails of the transactions and in a large number of transactions trail right from cash deposit account to the beneficiaries account was unearthed. The A.O. has further stated that assessee has also taken accommodation entries in the form of "Pre5 determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 also confirmed the additions made by the AO under section 68 of the Act. Aggrieved, the assessee is in appeal before this Tribunal. 4. I have heard rival submissions and gone through the facts and circumstances of the case. It is noted that the order of Ld. CIT(A) is an ex parte order. However, the Ld. AR of the assessee pointed out that the scrips on which LTCG was derived by the assessee was from the purchase and sale of scrips known as M/s. Essar India Ltd. which scrip has been found to be genuine by this Tribunal vide its order in ITA No. 604/Kol/2018 for AY 2014- 15 in the case of Jagmohan Agarwal Vs. ACIT dated 05.09.2018. Therefore, there is no worthwhile reason to send these appeals back to the Ld. CIT(A) which will be an abuse of the process of law. After hearing both the sides, I would like to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aman 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TT. It is noted that the assessee has purchased and sold the shares of M/s. EIL through on line platform of stock exchange. It is noted that the AO has disallowed the LTCG claim of assessee on the reason of certain investigation report as well as that of statement of certain brokers. However, it was brought to my notice that despite assessee asking for the name of the persons who has allegedly confessed their wrong doing/modus operandi to launder the assessee's own money, the AO has not bothered to disclose the name of any of those persons whose statement he relied upon to draw adverse inference against the assessee. I have also been made to understand that no statement of any of these individuals who has made the purported allegation against the assessee has been furnished to the assessee. The assessee's request to cross examination of such persons has also not been heeded to by the AO. In such a scenario, the third party's statement could not have been relied upon by the AO to draw adverse inference against the assessee. For that, I rely on the decision of Hon'ble Supreme Court in Andaman Timber Industries in Civil Appeal No. 4228 of 2006. In the light of the above discussion and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had obtained information u/s 133(6) about 'Exit Providers' or 'Counter Parties' from Bombay Stock Exchange (BSE), which corresponds to the purchase and sale transactions of the assessee in the said scrip. According to AO, the said information contained the names of 'M/s. East India Securities Ltd.' and 'M/s. GCM Securities Ltd.' as Counter Party Member, against whom Shri L.K. Agarwal and Shri Goutam Bose, entry operators, had given statement. Further, during the course of assessment proceedings, reference to statement of one Shri S. Dokania was also made. Further, the AO had reproduced the entire modus operandi of bogus LTCG, which has been stated by SEBI in its various orders. After considering the abovementioned facts and documents, the AO issued a show cause notice on the assessee in respect of LTCG transactions in the scrips of M/s. Essar India Ltd. and in response to the said notice the appellant stated that the said transactions were carried out through BSE and banking channels and could be verified by AO The assessee further stated that STT were deducted on the sale of said scrips. However, the AO was not convinced with the assessee's cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same to the assessee. Further, according to Ld. AR, the AO had not brought on record any material/evidence against the assessee based on which he was of the view that the amount of LTCG earned by the appellant were all bogus. The Ld. AR drew our attention to the following judicial decisions, wherein it had been held that the AO is bound to provide the copies of information which were collected behind the back of the assessee. Further, according to Ld. AR, the AO is also bound to provide an opportunity of cross examination in respect of statements adverse to him, which were recorded behind the back of the assessee and which were relied upon before taking any adverse view against the assessee:- 6. The Ld. AR drew our attention to the case of KALRA GLASS FACTORY VS SALES TAX TRIBUNAL - SUPREME COURT 167 ITR 488 OF 1987 wherein it has been held that the elementary principle of natural justice as applied to Income Tax proceedings, is that the assessee should have the knowledge of the material that is going to be based against him so that he may be able to meet it where for instance the statement of a person is recorded behind the back of the assessee, but not tested by cross exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by him and there is on understatement or concealment of the consideration in respect of the transfer. Sub-section (2) has no application in the case of an honest and bona fide transaction where the consideration received by the assessee has been correctly declared or disclosed by him, and there is no concealment or suppression of the consideration." 9. Further reliance for this proposition is also placed on the judgment of Hon'ble Apex Court in the case of Uma Charan Shaw & Bros, Co, vs, CIT (37 ITR 271). It has been further held in the following cases that suspicion howsoever strong cannot take the place of proof: a) 37 ITR 151 (SC) Omar Salay Mohammad Salt vs CIT b) 26 ITR 736 (SC) Dhirajlal Girdharilal vs CIT c) 26 ITR 775 (SC) Dhakeshwari Cotton Mills Ltd. vs CIT d) 37 ITR 288 (SC) Lal Chand Bhagat Ambica Ram vs CIT 10. Further, in the case of Raj Kumar Agarwal (ITA No. 1330/K/07), reliance was placed on Hon'ble Calcutta High Court's decision in the case of Cabro Industrial Holdings Ltd. (244 ITR 422) wherein it was held that the claim of the assessee should not be denied on mere suspicion. 11. According to the Ld. AR, during the course of assessment p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 the proposition. The various facets of the arguments of the ld AR supra, with regard to impleading the assessee for drawing adverse inference 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. 15. It has also been held in the said order that- "Hence we hold that there is absolutely no adverse material to implicate the assessee to the entire gamut of unwarranted allegations levelled by the AO against the assessee which in our considered opinion, has no legs to stand in the eyes of law" 16. According to Ld. AR, the instant case is similar to the case of Manish Kumar Baid and Mahendra Kumar Baid, as the AO had not brought on record neither any material nor conclusive evidence in support of his allegations and, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri L. K. Agarwal and Shri Gautam Bose whose statements have been purportedly recorded by the Department are referred to draw adverse view. On this fact it was pointed out by the Ld. AR that these two persons are in no way connected with the assessee and had no where made any incriminating statement against the assessee to the effect that assessee had involved in rigging. Not only that the AO failed to give copies of these two persons statement referred to by AO and that of Shri S. Dhokani whose statement was also referred to by AO to justify the suspicion against the appellant, makes the order bad for violation of natural justice. According to Ld. AR, no statement against assessee can be used by AO to draw adverse inference unless a copy is given to assessee and opportunity to cross examine is allowed. 19. According to Ld. AR, the transactions in the scrips were legally entered into by the appellant through its registered broker and all the payments were made and received through banking channels. The copies of contract notes, de-mat statement and bank statements have been submitted to the AO during the course of assessment proceedings. The Ld. AR drew our attention to the foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said judgments we find that the proposition laid down by the Hon'ble Courts are applicable to the instant case on hand, The addition was made by the lower authorities on several grounds as discussed above but on analysis of the fact we find that there was no fault on the part of the assessee. Therefore we are inclined to reverse the order of lower authorities. Hence this ground of appeal of the assessee is allowed." 21. Further, our attention was drawn to the case of ITO vs Arvind Kumar Jain HUF (ITA No. 4862/Mum/2014) (Pronounced on 18.09.2017), the Tribunal (Mumbai) had held that "if the DMAT account and contract note show details of the share transactions and the AO has not proved the transactions to be bogus, the capital gains earned on the said transactions cannot be treated as unaccounted income u/s 68, The fact that the broker was tainted and violated SEBI regulations would not make assessee's transactions bogus," 22. Further, our attention was drawn to the case of Kiran Kothari HUF Vs lTO. Wd - 35(3) Kol. (lTA No. 443/Kol/20l7), Pronounced on 15.11.2017, the Tribunal had held as under: "At the cost of repetition, we note that the assessee had furnished all relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, We therefore direct the A0 to delete the addition," Further, we would also like to place reliance on the case of Dolarral Hemani, ITO (ITA No. 19/Kol/2014) (AY 2005-06) Dt. Of pronouncement 02.12.2016) wherein Tribunal has held: "We find that the similar issue had been adjudicated by the co-ordinate bench of this tribunal in the case of DCIT ys Sunita Khemka in ITA Nos, 714 to 718/Kol/2011 dated 28.10,2015 and in the case of ITO vs Rajkumar Agarwal in ITA No, 1330 (Kol) of 2007 dated 10.8.2007 wherein it was held that, when purchase and sale of shares were supported by proper contract notes, deliveries of shares were received through demat account maintained with various agencies, the shares were purchased and sold through recognized broker and the sale considerations were received by account payee cheques. the transactions cannot be treated as bogus and the income so disclosed was assessable as LTCG. We find that in the instant case, the addition has been made only on the basis of the suspicion that the difference in purchase and sale price of these shares is unusually high. The revenue had not brought any material on record to support its finding that there has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever relied solely on the statement of Shri Roopani at the time of search without taking cognizance of cross examination and documents produced and disallowed the loss treating it to be bogus. The CIT(A) upheld the disallowance which was deleted by the tribunal. While dismissing the revenue's appeal u/s 260A the Calcutta High Court observed as 'It appears that the share loss and the whole transactions were supported by contract notes, bills and were carried through recognized stock broker and all the payments received from stock broker through payee instruments which were also filed in accordance with the assessment. It appears from the facts and materials placed before the Tribunal and after examining the same the Tribunal came to the conclusion and allowed the appeal filed by the assessee. In doing so, the tribunal held that the transaction fully supported by the documentary evidences could not be brushed aside on suspicion and surmises, However, it was held that the transactions of share are genuine. Therefore we do not find that there is any reason to hold that there is any substantial question of law involved in this matter. Hence, the appeal being ITA NO.620 of 2008 is dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. The Tribunal held that the AO's conclusions are merely based on the information received by him. The appeal filed by the revenue was dismissed. 27. The ld AR further submitted before us that once the assessee has furnished all evidences in support of the genuineness of the transactions, the onus to disprove the same is on revenue. He referred to the judgement of Hon'ble Supreme Court in the case of Krishnanand Agnihotri vs. The State of Madhya Pradesh [1977] 1 SCC 816 (SC). In this case the Hon'ble Apex Court held that the burden of showing that a particular transaction is benami and the appellant owner is not the real owner always rests on the person asserting it to be so and the burden has to be strictly discharged by adducing evidence of a definite character which would directly prove the fact of benami or establish circumstances unerringly and reasonably raising inference of that fact. The Hon'ble Apex Court further held that it is not enough to show circumstances which might create suspicion because the court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence. As per the ld AR the AO/ CIT(A) was not justified in invoking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the name of the assessee has been reflected as a shareholder. The appellant has also filed proof of amalgamation of the companies wherein the shareholding has changed hands. It is also the contention of the appellant that it has provided copies of the bank statement, bank contract notes and delivery instructions to the broker by way of proof that all these transactions were genuine. However, in my considered view of the matter, it is precisely this elaborate paperwork that strengthens the matter relating to the bogus benefit of the LTCG, which clearly has been schemed, preplanned and executed with malafide intelligence and precision. Therefore all these papers are mere documents and not any evidence. The whole gamut of transactions are unnatural and highly suspicious, and therefore the rules of SUSPICIOUS TRANSACTIONS ought to apply in the instant case. There are grave doubts in the story propounded by the assessee before the authorities below. None of the material produced before the Ld. AO by the assessee-appellant are enough to justify the humongous gains accruing to the assessee by way of Capital Gains. In my considered view the banking documents are mere self serving reci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the transactions of capital gains as claimed by the assessee was duly backed by relevant facts and documentary evidences which include the following :- A. Documents/facts supporting purchase of shares in question:- i) The assessee purchased the 25000 shares on 22.03.2012 through Bombay Stock Exchange. ii) The shares have been purchased against sale of another share and the balance payment has been made through a/c payee cheque. iii) The relevant copy of Bank Statement showing the balance payment was produced before us and CIT(A)/AO. iv) The shares were not allotted through a Public Offer but were purchased in secondary market through a recognized Stock Exchange. v) The Contract Notes for purchase of aforesaid shares is enclosed (Page 2 of paper book) vi) The complete details of the broker is as follows: Name: R L Agarwala Capital Markets Ltd. PAN: AABCR8213Q Address: Martin Bum House, 2nd floor, suite no. 207, 1, R. N. Mukherjee Rd, Kolkata - 1 Contact no. (033) 2248-2458 vii) The shares were purchased in de mat form. viii) The De mat a/c was opened in 2006. The name of DP is East India Securities Ltd.& DPID being IN300327. Its address is as follows: DA- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in such report. However, we note that neither any investigation was carried out against the assessee nor against the brokers to whom the assessee dealt with the purchase and sale of shares in question. Thus the AO has failed to bring on record any material contained in the purported reports which are having so called adverse impact on the assessee. We further note that the company under scanner as recorded by the AO at page 4 of his order was having shareholder fund as on 31.03.2014 of Rs. 21.82 crores and was having assets worth Rs. 41.50 crores and a turnover of Rs. 15.72 crores and profit of Rs. 10 lacs. Thus the allegation that these companies did not have financial credentials at the time of purchase of shares or sale of shares is not correct and so is perverse and therefore we do not subscribe to the said finding. 34. At the cost of repetition, we find that the transactions of sale of shares by the assessee was duly backed up by material/evidence including contract notes, demat statement, bank account reflecting transactions, the shares having been sold on the online platform of the stock exchange and each trade of sale of shares were having unique trade number and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee on record. The AO's observation and conclusion are merely based on information. Therefore on such basis, no disallowance can be made and accordingly we find no infirmity in the order of the ld. CiT(A), who has rightly allowed the claim of the assessee. This ground no.1 of the revenue is dismissed." We agree with the reasoning of the tribunal on this point also. We do not find any reason to interfere with the impugned order. The suggested question, in our opinion do not raise any substantial question of law." 35. In the light of the documents stated in para 30 at Page14(supra) we find that there is absolutely no adverse material to implicate the assessee to the entire gamut of unfounded/unwarranted allegations leveled by the AO against the assessee, which in our considered opinion has no legs to stand and therefore has to fall. We take note that the ld. DR could not controvert the facts which are supported with material evidences furnished by the assessee which are on record and could only rely on the orders of the AO/CIT(A). We note that the allegations that the assessee/brokers got involved in price rigging/manipulation of shares must therefore consequently fail. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ld. CIT(A) was not justified in upholding the addition of sale proceeds of the shares as undisclosed income of the assessee u/s 68 of the Act. We therefore direct the AO to delete the addition." 6. Respectfully following the ratio of the aforesaid decision and taking into consideration the documents and circumstances of the transaction which are discussed in detail at para 5 (supra), I am inclined to allow the claim of LTCG and consequently the claim of that amount as exempt u/s. 10(38) of the Act. 7. Coming to other six appeals (ITA Nos. 417 to 422/Kol/2019, I note that all other assessee's are family members/relatives and the appeals preferred by them deals with the same scrip of M/s. EIL and it is noted by me that in all the appeals, the transactions have taken place through the same broker and only the difference is that of dates and figures. I find that the sale and purchase of the scrip of M/s. EIL has taken through on line platform and payments have been made through banking channel and after the purchase of scrips of M/s. EIL it has been dematerialized and held by the respective assessee's for more than one year and the STT having been paid at the time of purchase and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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