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TMI Blog2024 (9) TMI 1517X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. CIT(A) NFAC has grossly erred in confirming the addition of Rs. 2235160/- made in the assessment completed u/s 143(3) by the AO by disallowing long term capital gain income claimed exempt u/s 10(38) by taxing the entire sale proceeds fron from sale of shares, as unexplained income u/s 68 of the IT Act 1961, without any basis and with the sole purpose to make additions without bringing on record any corroborative material found during the course of assessment proceedings, and also by completely ignoring the well established law that no addition can be made solely on the basis of statements recorded on oath during the course of survey conducted just on the basis of information received from Investigation Wing of Income Tax, Kolkata, without making its own independent enquiry and efforts. Thus, the additions made solely on the basis of such retracted statements deserve to be deleted. 1.1 That, the Ld. CIT (A) NFAC has grossly erred in confirming the addition made in the assessment completed u/s 143(3) solely on the basis of statements of Shri Anil Agarwal recorded by I.T. Officials after giving summons u/s 131 of the I.T. Act 1961 during the course of search operations carried o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 22,35,160/- and made further addition of Rs. 44703/- being 2% commission paid to the entry operators. 5. The assessee carried the matter before the ld. CIT(A) but without any success. Before us at the very outset the counsel pointed out that on identical set of facts the coordinate bench in the case of the brother of the assessee has deleted the impugned addition. The counsel supplied the copy of the order of the coordinate bench. Per contra the ld. DR strongly supported the findings of the AO but could not bring any distinguishing decision in favour of the revenue. 6. We have given a thoughtful consideration to the orders of the authorities below. We find force in the contention of the counsel on identical set of facts and on identical transactions in identical scrip the coordinate bench had considered the identical issue in the case Sanket Shailendra Modi in ITA No. 1780/Mum/2022. The relevant finding reads as under:- 6. At the outset, we find that the documentary evidences submitted by the assessee were found to be genuine and no adverse inferences were drawn by the revenue on the same. The transactions were carried out by the assessee in the secondary market through a regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n artificial price rigging of shares and the list of beneficiaries. The assessee's name or the broker through whom the assessee bought and sold the shares does not figure in the said list in the order of SEBI. Hence even SEBI does not allege any involvement of the assessee herein with the manipulation of share prices. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 6.7. Hence the entire addition has been made merely by placing reliance on the Kolkata Investigation Wing report which are more general in nature and does not implicate the assessee herein in any manner whatsoever. We are unable to persuade ourselves to accept to the contentions of the Id. DR that Kolkata Investigation Wing had conducted a detailed enquiry with regard to the scrip dealt by the assessee herein and hence whomsoever had dealt in this scrip, would only result in bogus claim of long term capital gain exemption or bogus claim of short term capital loss. Merely because a particular scrip is identified as a penny stock by the income tax department, it does not mean all the transactions carried out in that scrip would be bogus. So many investors enter the capital market just to make it a chance by investing thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant case. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 6.11. Considering the totality of the facts and circumstances of the instant case and respectfully following the judicial precedents relied upon hereinabove, we are not inclined to accept to the stand of the Id. CIT(A) in sustaining the impugned additions on account of denial of exemption for long term capital gains u/s 10(38) of the Act and estimated commission @ 2% against the same. Accordingly, the grounds raised by the assessee are allowed. 7. While coming to the above conclusion the coordinate bench has considered the following facts :- Date Event Supporting documents Submitted before AO during assessment proceeding 18.03.2011 Appellant purchased shares of sunrise Asian Ltd from Shipra Fabrics Private Ltd being an off market purchase in physical form Debit note issued by Shipra Fabrics P Ltd dated 18th March 2011 Yes on 9th October 2017 18.03.2011 Cheque No 689555 drawn on HDFC Bank Favoring Shipra Fabrics Ltd. cleared by bankers on 19.03.2011 Copy of bank statement for the relevant transactions Yes on 9th October 2017 19.03.2011 Receipt issued by Shipra C Fabrics Ltd. for consideration of 100000/- Copy of receipt Yes on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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