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TMI Blog2023 (2) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the said doctrine, we have no hesitation to hold that the transaction of purchase and sale of shares of M/s. Lifeline Drugs Pharma Ltd. under consideration before us is void ab-initio, this is nothing but sham, make believe and colourful device adopted with excellent paper work with intention bringing the undisclosed income into books of account. Accordingly, we confirm the orders of the Assessing Officer as well as the ld. CIT(A) and find no merits in the appeal preferred by the assessee before us. Appeal filed by the assessee stands dismissed. - ITA No. 262/PUN/2022 - - - Dated:- 31-1-2023 - SHRI S. S. GODARA , JUDICIAL MEMBER AND SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER For the Assessee : None For the Revenue : Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, who is an operator of M/s Sunrise Asian Ltd. and several other entities alleged to be involved in providing accommodation entries as bogus long term capital gains by adopting modus operandi as set out by the Assessing Officer in the assessment order. During the course of assessment proceedings, the appellant had failed to substantiate that the transactions of purchase and sales of shares is genuine one. In the circumstances, the Assessing Officer brought to tax the sale proceeds of the shares as unexplained cash credit and completed the assessment. 3. Being aggrieved by the order of assessment, an appeal was filed before the ld. CIT(A) contending that the assessee had proved the genuineness of the transactions of purchase and sales of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant purchased 45,000 shares of Santoshima Lease Finance Investment (India) Ltd. in 2011 on the Bombay Stock Exchange Limited (BSE) through preferential placement. The said shares were sold during the previous year relevant to the assessment year under consideration resulting in capital gain of Rs.2,17,47,109/-, which was claimed exempt u/s 10(38) of the Act. The case of the Assessing Officer is that the appellant is a beneficiary of accommodation entries or long term capital gains from Calcutta Entry Provider, namely, Shri Vipul Vidur Bhatt, who is an operator of M/s Sunrise Asian Ltd.. The Investigation Wing of the Income Tax Department, Calcutta had conducted search and seizure operations on the said entry provider and recorded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT, 214 ITR 801 (SC) and CIT vs. Durga Prasad More, 82 ITR 540 (SC). This finding of the ld. CIT(A) confirming the action of the Assessing Officer is under challenge before us contenting that the appellant had discharged the onus of proving the genuineness of transactions of capital gains in respect of exemption u/s 10(38) of the Act. In a case involving identical facts of the case, the Hon ble Calcutta High Court after making reference to the decisions of Hon ble Madras High Court in the case of CIT vs. Manish D. Jain, 120 taxmann.com 180 (Mad.) and PCIT vs. Prabha Jain, 439 ITR 304 (Mad.) had confirmed the action of the Assessing Officer by holding that the Assessing Officer had cogently brought out the factual scenario to establish mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. In S. P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others [AIR 1994 SC 853] this court commenced the verdict with the following words:- Fraud-avoids all judicial acts, ecclesiastical or temporal observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. 21. In the said case it was clearly stated that the courts of law are me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... degree of solemnity. 24. Yet in another decision Hamza Haji v. State of Kerala Anr. [AIR 2006 SC 3028] it has been held that no court will allow itself to be used as an instrument of fraud and no court, by way of rule of evidence and procedure, can allow its eyes to be closed to the fact it is being used as an instrument of fraud. The basic principle is that a party who secures the judgment by taking recourse to fraud should not be enabled to enjoy the fruits thereof. 10. In the present case also, the appellant deliberately withheld the information from the Assessing Officer as well as the ld. CIT(A) which is within exclusive knowledge of appellant to establish the genuineness of transactions of purchase of shares of that co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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