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TMI Blog2021 (6) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... forward to the assessee seeking clarification. It is also a fact that enquiry which was required to be done by the departmental authorities to go to the root of the matter and ascertain the genuineness of the shares of GFL Financials, have not been done. The entire issue relating to the genuineness of share transaction involving the shares of GFL Financials requires fresh consideration at the end of the AO. As regards the decisions relied upon by learned counsels appearing for the parties, though, there cannot be any dispute regarding the principle/ratio laid therein; however, they have to be applied only after full facts are brought on record. Since, in the facts of the present case we are of the view that the facts relating to the disputed issue have not been fully brought on record, we cannot apply the ratio laid down in the decisions relied upon in vacuum. Accordingly, we deem it appropriate to set aside the impugned order of CIT(Appeals) and restore the issue to the file of the AO for fresh adjudication keeping in view our observations hereinabove. Grounds are allowed for statistical purposes. - I.T.A. No.4721/Mum/2019 - - - Dated:- 18-6-2021 - Shri Saktijit Dey (Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from Investigation Wing of the department at Kolkata, GFL Financials is a penny stock company and the price of shares was artificially increased through rigging. After relying upon various judicial precedents, the assessing officer treated the amount received towards sale consideration of shares of GFL Financials as unexplained cash credit under section 68 of the Act and added back to the income of the assessee. Though, the assessee contested the addition before learned Commissioner of Income Tax (Appeals); however, she was unsuccessful. 4. The learned counsel for the assessee submitted, the assessee had purchased 23,600 shares of GFL Financials, each having face value of ₹ 5/- per share, at a cost of ₹ 16.91 per share on 02-04-2012. He submitted, the shares were purchased through a broker, viz. Pragati Shares Stock Services and payment was made through account payee cheque. He submitted, thereafter, the shares of GFL Financials were split into ₹ 2/- per share and assessee became owner of 59,000 shares which was reflected in the balance-sheet. He submitted, out of the 59,000 shares, assessee sold 42,500 shares in the current year through another broker, vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfied all the ingredients of section 68 of the Act by establishing identity, genuineness and creditworthiness, no addition could have been made under the said provision. In support of such contention, learned counsel relied upon the following decisions:- 1. CIT vs Shyam R Pawar (2015 54 taxmann.com 108 (Bom) 2. Kamlesh Mundra vs ITO, Wd.19(2)(3) ITA No.6248/Mum/2012 3. ITO,Wd.2, Nizamabad vs Smt. Aarti Mittal (2014) 41 taxmann.com 118 (Hyderabad.Trib) 4. Arceli Realty Limited vs ITO (ITAT Mumbai) 5. CIT, Jamshedpur vs Arun Kumar Agrawal,HUF (2012) 26 taxmann.com 113 (Jharkhand) (2012) 210 Taxman 405 (Jharkhand) 6. Pr.CIT-5 vs Jatin Investments Pvt Ltd ITA Nos 43/2016 44/2016 (Del HC) 7. Shri Sunil Prakash vs ACIT-15(2), Mumbai ITA 6494/Mum/2014 (ITAT Mumbai E Bench) 8. Smt. Sunita Jain vs Income-tax Officer,Ward 10(3), Ahmedabad ITA Nos.501 502/AHD/2016 (ITAT Ahmedabad SMC Bench 9. Vasantraj Birawat vs Assistant Commissioner of Income tax (2015) 61 taxmann.com 295 (Mumbai-Trib)/(2015) 39 ITR (T) 450 (Mumbai-Trib) 10. (2017) 77 taxmann.com 260 (Ahmedabad Trib) Pratik Suryakant Shah vs ITO, Ward 10(3), Ahmedabad 12. (2015) 55 taxmann.com 346 (Pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Circle-6 vs Smt. Tharakumari Madras High Court dated 11-02-2019 Tax case appeal No.128 of 2019 and C.M.P. No.3353 of 2019 3. Commissioner of Income-tax Chennai vs Mrs Manish D Jain (HUF) In the High Court of Madras TCA No.223 of 2020 order dated 16/12/2020 4. Udit Kalra vs ITO,Wd.50-(1), Delhi (Delhi High Court) ITA 220/2019 CM No.10774/2019 dt 08-03-2019 5. Suman Poddar vs ITO, Delhi ITA 842/019 in the High Court of Delhi dt 17-09-2019 6. Sumar Poddar vs ITO,Delhi Special Leave to Appeal (C) No.26864/2019 In the Supreme Court of India dated 22-11-2019 7. Ratnakar M Pujari vs ITO Ward 25(3)(3), Mumbai ITA No.995/Mum/2012 ITAT,D-Bench 8. Shamim Imtiaz Hingora vs ITO (ITAT Pune) Appeal No 1875/PUN/2018 dt. 01-03-2019 9. Shamim M Bharwani, Mumbai vs Department of Income-tax ITA 4906/Mum/2011 dated 27 March, 2015 10. Pooja Ajmani vs ITO (ITAT Delhi) ITA 5714/Del/2018 in the High Court of Delhi April 25, 2019 11. Shri Sanat Kumar vs ACIT, Circle 36(1), Delhi ITA No.1881/Del/2018 12. Shri Sandeep Bhargava vs ACIT, Cir.60(1), New Delhi ITA No.420/Del/2019 dt 20-08-2019 13. Shri Satish Kishore, Shri Nawal KIshore vs ITO Wd.47(2) 47(4), Delhi ITAT D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re unable to record any conclusive finding as entire report of the investigation wing, Kolkata is not available on record. It also appears, neither the assessing officer nor learned Commissioner of Income Tax (Appeals) has conducted any independent enquiry with GFL Financials at their own level to ascertain the genuineness of the transaction. 8. At the same time, it is a fact that the assessing officer has conducted enquiries with the brokers through whom the assessee had purchased and sold shares. Though, both the brokers have confirmed of having carried out the transaction with the assessee; however, it is evident that most of the entities who purchased shares of GFL Financials sold by the assessee did not respond to the notices issued Under section 133(6) seeking certain information. Further, as observed by assessing officer, some of the notices issued under section 133(6) have returned back unserved. It is also a fact that though the assessee had purchased the shares from Pragati Shares Stock Services on 02-04-2012; however, they were not immediately transferred to assessee s demat account, but were kept in the pool account of the broker and was transferred to assessee s d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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