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TMI Blog2021 (3) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... lethora of evidences in respect of facts in hand and hence the judicial decisions relied upon by both the sides, though perused, but not considered on the facts of the case in hand except the decision of the coordinate bench discussed elsewhere because the same exparte Ad-Interim order of SEBI was considered and facts are mutatis mutandis same. We, accordingly, direct the Assessing Officer to accept the long term capital gain declared as such and delete the addition. SEBI order is dated 22.12.2020 whereas the transactions which have been considered in this appeal took place in F.Y. 2014-15 and therefore, restrain after a gap of more than 5 years would do no good to the Revenue. This order has restrained named noticees from accessing security market by issuing prospectus, offer document or advertisement soliciting money from the public in any manner for a period of 8 years. Obviously, this restraint is prospective. - ITA No. 8142/DEL/2018 - - - Dated:- 19-3-2021 - Shri Bhavnesh Saini, Judicial Member, And Shri N.K. Billaiya, Accountant Member For the Assessee : Shri Rakesh Gupta, Adv, Shri Somil Agarwal, Adv For the Revenue : Shri Prakash Dubey, Sr. DR ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me tax department, the Assessing Officer formed a belief that the share prices of HPC Biosciences Ltd were rigged by a cartel. 8. The Assessing Officer supported his belief by observing as under: 9. We find that from pages 2 to 16, the Assessing Officer has discussed the Ad-Interim Order of the SEBI dated 29.06.2015 in order No. WTM/RKA/ISD/54/2015. Referring to various judicial decisions, the Assessing Officer came to the conclusion that the assessee has introduced/credited capital by an amount of ₹ 1,96,23,848/- during the year in his books, the source of which he explained as proceeds from these share sale transactions and since the explanation offered by the assessee in respect of source of this capital introduced being share sale transactions, has been held to be not satisfactory, section 68 of the Act is squarely applicable and accordingly, made an addition of ₹ 2,10,23,848/- u/s 68 of the Act. 10. The findings of the Assessing Officer were confirmed by the ld. CIT(A). 11. We have carefully perused the ex parte Ad-Interim order of SEBI mentioned hereinabove. We have also the benefit of SEBI order No. No. WTM/RKA/ISD/07/2015 dated 04.01.2016 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the ld. DR. In both these cases, the coordinate bench has decided the appeal in favour of the Revenue and against the assessee on finding their names in the list of entities debarred in SEBI s order. Since the appellant s name does not find place in the list of entities debarred by SEBI, these judgments relied upon by the ld. DR are clearly distinguishable on facts. 17. A perusal of the assessment order clearly shows that the Assessing Officer was carried away by the report of the Investigation Wing and the exparte Ad-Interim order of the SEBI. It can be seen that the entire assessment order has been framed by the Assessing Officer without conducting any enquiry from the relevant parties or independent source or evidence but has merely relied upon the SEBI order without conducting any independent and separate enquiry in the case of the appellant. 18. It is provided u/s 142(2) of the Act that for the purpose of obtaining full information in respect of income of loss of any person, the Assessing Officer may make such enquiry as he considers necessary. 19. Similar facts were considered by the coordinate bench in the case of Smt. Karuna Garg ITA No. 1069 2772/DEL/2019, Smt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odation entries. We do notice that the AO made an attempt to delve into the question of infusion of Respondent s unaccounted money, but he did not dig deeper. Notices issued under Sections 133(6)/131 of the Act were issued to M/s Gold Line International Finvest Limited, but nothing emerged from this effort. The payment for the shares in question was made by Sh. Salasar Trading Company. Notice was issued to this entity as well, but when the notices were returned unserved, the AO did not take the matter any further. He thereafter simply proceeded on the basis of the financials of the company to come to the conclusion that the transactions were accommodation entries, and thus, fictitious. The conclusion drawn by the AO, that there was an agreement to convert unaccounted money by taking fictitious LTCG in a pre-planned manner, is therefore entirely unsupported by any material on record. This finding is thus purely an assumption based on conjecture made by the AO. This flawed approach forms the reason for the learned ITAT to interfere with the findings of the lower tax authorities. The learned ITAT after considering the entire conspectus of case and the evidence brought on record, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case. On such basis, the ITAT had returned the finding of fact against the Assessee, holding that the genuineness of share transaction was not established by him. However, this is quite different from the factual matrix at hand. Similarly, the case of Sumati Dayal v. CIT (supra) too turns on its own specific facts. The above-stated cases, thus, are of no assistance to the case sought to be canvassed by the Revenue. 13. The learned ITAT, being the last fact-finding authority, on the basis of the evidence brought on record, has rightly come to the conclusion that the lower tax authorities are not able to sustain the addition without any cogent material on record. We thus find no perversity in the Impugned Order. 14. In this view of the matter, no question of law, much less a substantial question of law arises for our consideration. 21. In our considered view, whether the assessee has discharged his onus cast upon him by provisions of section 68 of the Act or not is purely a question of fact and considering the vortex of evidences, we are of the considered view that the assessee has successfully discharged the onus cast upon him by provisions of section 68 of the Act. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the period specified in their respective columns: Sr. No. Name of the Noticee PAN Debarred vide interim order Period of Debarment 1 HPC Biosciences Ltd^- AABCH6762Q Yes Till date of this order Sr. No. Name of the Noticee PAN Debarred vide interim Period of debarment 2 Shri. Tarun Chauhan AGXPC3049G Yes Till date of this order 3 Ms. Madhu Anand AXTPA8813F Yes Till date of this order 4 Goldline International Finvest Ltd. AACCG6377M Yes Till date of this order 5 Shri. Satendra Kumar its Proprietorship firm viz. Nisha Traders AWWPK8525E Yes Till date of this order 6 Shri. Sate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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