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TMI Blog2023 (12) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee made purchases of impugned shares through well-known stock broker Reliance Securities Limited. The transaction was carried out through Bombay Stock Exchange, therefore, find no justification to tax such short term capital gain as unexplained cash credit without bringing any adverse evidence on record. Accordingly, direct to delete the addition made by the Assessing Officer and confirmed by the ld. CIT(A). Decided in favour of assessee. - Shri Pawan Singh, Judicial Member For the Assessee : Shri Keyur Sheth, Advocate For the Department : Shri Vinod Kumar, Sr. DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals) [in short, the ld. CIT(A)] dated 09/05/2023 for the Assessment Year (AY) 2011-12. 2. Perusal of record shows that the impugned order was passed on 09/05/2023, however the present appeal is filed on 14/08/2013, thus, there is a delay of 37 days in filing appeal before the Tribunal. The assessee has filed application for condonation of delay in filing app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction must be made between a case where the delay is inordinate and the cases where delay is of few days only. Considering the fact that the assessee is diligent in pursuing the appeal and the delay is only of 37 days, and adopting a liberal approach and further keeping in view the principle that when technical consideration in cause of substantial justice are pitted against each other, the cause of justice must be prevailed. Therefore, the delay of 37 days in filing appeal before the Tribunal is condoned. Now adverting to the merit of the case. 5. Brief facts of the case are that the case of assessee was reopened on the basis of information from the office of Pr.DIT (Inv.), Surat regarding the bogus claim of long term capital gain of Rs. 3,43,200/- by the assessee. The Assessing Officer after obtaining necessary approval, issued notice under Section 148 of the Income Tax Act, 1961 (in short, the Act) on 29/03/2018. In response to notice under Section 148 of the Act, the assessee filed return of income on 11/07/2018 declaring total income at Rs. 5,24,220/-. The assessee on filing return of income, requested for reasons recorded. The reasons recoded were provided to the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer. The Assessing Officer by referring the modus operandi of penny stock company and held that the assessee has sold share within 12 days and earned short term capital gain. Financial result of transaction indicate that rise in price was a result of rigging. The Assessing Officer thereby brought the short term capital gain under taxation under Section 68 of the Act. 7. Aggrieved by the additions in the assessment order, the assessee filed appeal before the ld. CIT(A). Before the ld. CIT(A), the assessee challenged the additions under Section 68 of the Act. No grounds of appeal against reopening under section 147 or validity on notice under section 148 was raised, thus the issue of reopening attains finality. Against the addition under Section 68 of the Act of Rs. 3,43,200/-, the assessee filed detailed written submission which has been dealt with by the ld. CIT(A) in detail on para 6.1 at page No. 4 to 24 of the order of ld. CIT(A). The ld. CIT(A) after considering the submission of assessee held that on the basis of ratio laid down by Hon'ble Calcutta High Court in PCIT Vs Swati Bajaj (2022) 139 taxmann.com 352 (Cal) clearly held that long term capital gain/short t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough stock broker namely Reliance Securities Limited on Bombay Stock Exchange. The payment was made through online platform. On increase of rate of shares, the assessee sold all the shares through stock exchange. The assessee paid STT on such transaction. The assessee furnished details of entire Demat account showing the sale and purchase. The assessee also furnished trading account with their broker Reliance Securities Limited. Reliance Securities Limited is a well-known broker. There is no allegation of Assessing Officer that Reliance Securities Limited was indulged in providing accommodation entry or manipulating the share price of specific scrips. Entire transaction was conducted through Bombay Stock Exchange. Besides that the assessee has also made trading in various scrips and earned short term capital gain or short term capital loss. All such short term capital gain or short term capital loss was shown in the computation of income filed with return of income. The Assessing Officer made addition solely on the basis of third party information without providing such details to the assessee. The Assessing Officer or the ld. CIT(A) has not considered the documentary evidences f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a single evidence furnished by assessee. The assessee demanded copy of investigation report carried out by the Investigation Wing, Kolkata. The same was not provided to the assessee. Before the ld. CIT(A), the assessee reiterated its submission about genuineness of their transaction. I find that the ld. CIT(A) instead of considering the evidence furnished by assessee, directly came to the conclusion by referring the decision in PCIT Vs Swati Bajaj (supra). In my view, the facts of the present case is at variance with the decision of PCIT Vs Swati Bajaj (supra). In the present case, the assessee has shown sufficient evidence about the purchase and sale of scrip of M/s Splash Media Infra Ltd.. No adverse material against such evidence was brought on record. No investigation was carried out by the Assessing officer. I find that the assessee by furnishing complete details of their share transaction, has discharged primary onus upon them. The Hon'ble Jurisdictional High Court in CIT Vs Ranchhod Jivabhai Nakhava 21 taxmann.com 159 (Guj) held that once the assessee has discharged its primary onus, the onus shift upon the revenue to carry out further investigation to disprove the evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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