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TMI Blog2024 (1) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... sold of the said scrip determined the same. In fact, the brokers credibility was also doubted by the Assessing Officer and for which the assessee has not given any explanation before any of the Authorities. Thus, the Assessing Officer and the CIT(A) has rightly denied the LTCG exemption u/s 10(38) of the Act to the assessee. Appeal of the assessee dismissed. - Ms. Suchitra Kamble, Judicial Member For the Assessee : Shri Vipul Khandhar, AR For the Revenue : Shri Yogesh Mishra, Sr. DR ORDER This appeal is filed by the assessee against order dated 26.04.2023 passed by the CIT(A), National Faceless Appeal Centre (NFAC), Delhi for the Assessment Year 2015-16. 2. The assessee has raised the following grounds of appeal :- 1. The learned CIT(A) erred in law and on facts in confirming the addition of u/s. 68 of IT Act, 1961 which is requested to be quashed. 2. The learned CIT(A) erred in passing the order u/s. 250 r.w.s. 254 of the IT Act, 1961 which is requested to be quashed. Prayer: (i) To set-aside the order u/s. 250 r.w.s. 254 of IT Act, 1961 which is requested to be quashed. (ii) To drop the addition of Rs. 7,54,948/- being accom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Capital Gain has been claimed. The assessee also furnished requisite format in contract note for sale of shares and ledger account from broker ASE Capital Markets Limited. After taking cognisance of the assessee s reply, the Assessing Officer observed that the assessee is maintaining Demat Account and the shares are purchased and sold through Demat account with KIFS Financial Services Limited except the script of Kappac Pharma Limited. The assessee admitted to have purchased 1000 shares of Websol Energy System Limited in Demat Account with KIFS Financial Services Limited on 07.12.2011. The assessee also found to have purchased various shares from 2011 in the Demat form with KIFS Financial Services Limited. However, in respect of 5000 shares of Kappac Pharma Limited was purchased on 02.04.2012 in physical form against Rs. 1,00,000/- from Corporate Stock Broking Pvt. Ltd. The payment for such purchase is also stated to have paid in cash on 04.04.2012. The purchase of this particular share dated 02.04.2012 was not proved. The assessee has given explanation but the same was not supported by details. The conduct of the assessee to purchase the shares of Kappac Pharma Limited in cash a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court) 6) Parasben K. Kochar (SCA Appeal 6782/2021 - Supreme Court) 6. The Ld. AR further submitted that the decision in the case of A.Y. 2014-15 will not be applicable as cross-examination was not asked in that A.Y. and in the present A.Y. the same was asked. The Ld. AR further submitted that the decision of Hon ble Gujarat High Court in the case of Parasben K. Kochar and other decisions cited by the assessee will be squarely applicable in assessee s case. 7. The Ld. DR submitted that the assessee has not relied on any statement as such in respect of Investigation Wing s report but has given categorical and independent finding about the assessee s purchase as the sale of the said scrip was through its broker and the impact on the said scrips gain. The Ld. DR filed the written submission which is as under:- 1. The AO has carried out an independent enquiry as detailed in para no.3.10 to 3.15 in the assessment order dated 29.09.2017. The enquiry has been carried out independent of Investigation Report on Penny Stocks. The AO after going through the facts of the case and information provided for in the ITR of the assessee for A.Y. 2015-16, concluded that the scrip o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the stages in the larger scheme of availing benefit of penny stock shares to bring her unaccounted income/ black money into books of account that to without paying single paisa of tax. 4. The reference to the Investigation Report on Penny Stock in the assessment order was made to bring all materials available with the AO on record and it was not relied upon by the AO blindly neither any statement recorded by the Investigation Wing was relied upon by the AO. AO has conducted his independent enquiry by giving assessee ample opportunities of being heard in accordance with the cardinal principles of Natural Justice and Evidence Act in the sense that no material was relied upon without confronting it to the assessee. 5. Assessee cannot be allowed selective appropriation of facts to the effect that since sale of the shares were effected through market bourse, the entire transaction was genuine and purchase of shares that to in cash would have no bearing on the nature of entire transaction which was in reality a sham transaction designed to defraud the revenue. The facts ought to be looked into their totality and assessee must not be allowed to cherry pick the facts to pain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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