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TMI Blog2019 (11) TMI 1543X X X X Extracts X X X X X X X X Extracts X X X X ..... nces for drawing an opinion on possible wrong claims but they are not the final evidence. we deem it fit to remit the issue of exemption in this appeal back to the file of the Assessing Officer for readjudication on the lines indicated above. AO 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, genuine etc. The assessee shall comply with the Assessing Officer s requirements as per law. Thus, the issue of exemption claim u/s 10(38) is restored to the file of the Assessing Officer for re-adjudication on the lines indicated above. - ITA No.2520/Chny/2019 - - - Dated:- 29-11-2019 - Shri N.R.S. Ganesan, Judicial Member And Shri S. Jayaraman, Accountant Member Appellant by : Shri D. Anand, Advocate Respondent by : Shri AR V. Sreenivasan, JCIT ORDER Shri S. Jayaraman, The assessee filed this appeal against the order of the Commissioner of Income Tax (Appeals)-12, Chennai in ITA No.106/CIT(A)-12/2017-18 dated 19.07.2019 for the assessment year 2015-16. 2. Shri J. Ganpatraj Sons, the assessee, had purchased 6000 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e orders and pleaded that this appeal be upheld. 4. We have considered the rival submissions. 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 is not permissible. This being so, in the interests of natural justice, the issue of the genuineness of the transactions require readjudication. 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 proving the exemption rests on the assessee. If the AO does have any evidence to the contrary, it is to be put to the assessee for his rebuttal. The internal communications of the Revenue are evidences for drawing an opinion on possible wrong claims but they are not the final evidence. The relevant porti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish 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 order of the Ld.CIT(A) nor from the side of the assessee. The main foundation 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 benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 from ₹ 20/- to ₹ 352/- in a period of two years. This would clearly be a case where the share value of the company was hitting the circuit breaker of the stock exchange on a daily basis and obviously it would have drawn attention. This being so, as the facts are not coming out of the Assessment Order nor the order of the Ld.CIT(A) nor from the side of the assessee, we are of the view that the issues in this appeal must be restored to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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