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TMI Blog2021 (1) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... ayed that the delay may be condoned and the appeal may be admitted. Learned D. R. had no objection to the condonation of delay therefore, finding the cause of delay to be genuine, learned A.R. was directed to proceed with his arguments on merits. 3. Learned counsel for the assessee submitted that the case of the assessee is duly covered in favour of the assessee by consolidated of the Tribunal in the case of other family members of the assessee vide order dated 16/12/2020 wherein the similar issue was decided by the Tribunal in favour of the assessee. 4. Learned D. R. submitted that the assessee did not represent before the CIT(A) and therefore, the appeal may be set aside to the office of learned CIT(A). Learned counsel for the assessee in rejoinder submitted that learned CIT(A) has passed the order on merit and in earlier cases also, similar argument was taken by Learned D. R. Learned counsel for the assessee prayed that the appeal of the assessee may be decided following the earlier Tribunal order. 5. We have heard the rival parties and have gone through the material placed on record. The brief facts of the case are that the assessee claimed a Long Term Capital Gain on the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69 of the Act which the Assessing Officer had made on the basis that assessee must have paid some commission for arrangement of bogus capital gain. The facts in brief are that assessee sold shares of CCL International Ltd. and earned long term capital gain. In support of long term capital gain the assessee filed before Assessing Officer the following documents (which is part of the paper book): S.No. Nature of documents Paper Book Page No 1. Copy of Bank Account of Federal Bank. 15-16 2. Copy of Bill Suktara Trade Link Filed 17 3. Copy of Contract note issued by Broker Edlwise Financial Adnsons Ltd. 18-24 4. Copy of Bank Account of Achal Gupta 25-31 5. Copy of Transaction statement issued From National Securities Depositary Ltd. 32-46 6.1 The above documents clearly demonstrates that assessee had purchased shares through Brokers for which the payment was made through banking channels. The assessee had sold shares through authorized stock broker and payment was received through baking channels after deduction of STT. On Page 16 which is a copy of Bank account of assessee there is evidence of payments to Suktara Trade link amounting to Rs. 8,25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee received 1,25,000 shares of M/s. CCL International Ltd. in the proportion of 250 equity shares Rs. 2 per share and Rs. 100 equity share of Rs. 10 per share. The shares which were allotted on 17.02.2011 have been sold after period of more than 18 to 20 months, i.e., on 29.08.2012 to 10.10.2012. The said shares have been sold through stock broker M/s. Indianivesh Securities Pvt. Ltd. 17. Before us the ld. counsel has in his brief note has stated that following documents and statements were filed before the authorities below: (a) All the transactions were supported by proper Contracts Notes and delivery of shares was made through De-mat Account with stock broker, M/s Indianivesh Securities Pvt. Ltd. (who is the member of BSE and registered with SEBI). The shares were sold in the open market. The appellant has fulfilled all the condition u/s 10(38) of the Income Tax Act, 1961. The appellant has already filed National Security Depository Limited generated Demat Account and the broker statement relating to the sale of share in our paper book, also relevant demat statement highlighting the shares purchased has already been submitted before the Ld. AO. (b) The appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here in the entire assessment order, there is any reference to any material or evidence that assessee or assessee's broker have been found to be indulged in any kind of accommodation entry in this scrip. No inquiry whatsoever has been made from the broker of the assessee. Further, during the period in which assessee had purchased the shares and had sold them whether the SEBI had suspended the trading has not been mentioned, in fact, Assessing Officer himself mentions that there was brief suspension in the year 2010, whereas the assessee has purchased shares in the year 2011 and sold them in the year 2012. Coming to the financials, as culled out from the records, the revenue from the operation of M/s. CCL International Ltd. from March, 2010 to March, 2012 was between Rs. 55.25 crore to Rs. 79 crore. Thus, it cannot be held that it was mere a paper entity. From a bare perusal of the history of listing and trading of shares and the quote of Bombay Stock Exchange as quoted in the assessment order, it clearly reflects that as on 06.02.2010, the closing price was Rs. 50 and there was a steady increase and within the period of 4 years the price had reached up to Rs. 609 on 25.11.2014. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court found that the issue involved was only a question of fact. In this respect, para 28 of the Tribunal order in the case of Karuna Garg is relevant which is reproduced below: "28. The DR heavily relied upon the judgment of Hon'ble High Court of Delhi in the case of Udit Kalra Vs. ITO in ITA No.220/2019. We have carefully perused the order of the Hon'ble High Court and on going through the said judgment we find that no question of law was formulated by the Hon'ble High Court of Delhi in the said case and there is only dismissal of appeal in limine as the Hon'ble High Court found that the issue involved is a question of fact." 6.4 Similarly in the case of Swati Luthra (supra), the Hon'ble Tribunal while dealing with the case law of Udit Kalra vide para 14 has held as under: "14. That the ld DR during the course of hearing placed heavy reliance on judgment of Hon'ble High Court of Delhi in the case of Udit Kalra vs ITO in ITA No. 220/2019. Relevant extracts of said judgment are extracted as below: "The assessee is aggrieved by the concurrent findings of the tax authorities - including the lower appellate authorities rejecting its claim for a lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant case, the interim order of SEBI in the cases of M/s Esteem Bio and M/s Turbotech have been cooled down by subsequent order of SEBI placed by assessees in its paper book. Thus, the case of Udit Kalra vs ITO relied by ld. DR is clearly distinguishable on facts and is not applicable to the facts of assessee. Thus, we hold that the case of assessee is factually and materially distinguishable from the facts of the case of Udit Kalra vs ITO so relied by ld DR." Therefore, the case law relied upon by Learned D. R. is not applicable to the facts and circumstances of the present case as that case was decided by Hon'ble High Court on the basis of facts and circumstances of that case. Therefore, the present case is fully covered by the decision of Hon'ble Delhi Tribunal in Reeshu Goel (supra) wherein the same scrip from which the assessee had obtained Long Term Capital Gain has been held to be genuine. Therefore, following the same, we hold that the scrip of CCL International Ltd. is genuine and not a penny stock and paper entity. 7. In view of the above judicial precedents and keeping in view the facts and circumstances of the case, Ground No. 5 to 8, the appeal of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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