9911796707
TMI Blog2024 (10) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... against the revenue. There was no specific mention of the assessee in any of the recorded statements which would establish her nexus with the whole arrangement of providing and accepting accommodation entries. The assessee had carried out the transaction through recognised stock exchange and thus operated in a regulatory environment and hence the allegation that he was hand in glove with some people who operated the scheme has no evidence. The documents submitted are contract notes, demat accounts and bank accounts before the revenue authorities which are issued by unrelated third parties, cannot be treated as sham self-serving. Decided in favour of assessee. - Shri Prashant Maharshi, Accountant Member And Shri Anikesh Banerjee, Judicial Member For the Assessee : Shri Anil Sathe For the Respondent : Shri Manoj Kumar Sinha(Sr. DR) ORDER PER ANIKESH BANERJEE, J.M: Instant appeal of the assessee is preferred against the order of the Learned National Faceless Appeal Centre (NFAC), Delhi [for brevity, Ld.CIT(A) ] passed under section 250 of the Income-tax Act, 1961 (in short, the Act ), for Assessment Year 2014-15, date of order 30.01.2024.The impugned order was emanated from the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 385/- the gain made by the appellant. 8. Without prejudice and strictly in alternative, the learned CIT(A) erred in confirming the action of Assessing Officer in not allowing the set off of carried forward short term capital loss to the extent of Rs. 9,83,078/-. 9. The appellant craves leave to add, alter or amend any of the grounds of the appeal, at any time before or at the time of hearing. 3. The brief facts of the case are that the assessee during the impugned assessment year filed the return and claimed long term capital gains (in short, LTCG) amount of Rs. 1,55,89,138/- as exempted income under section 10(38) of the Act and offered tax in short term capital gains (STCG) amount of Rs. 64,35,247/-. The total sale proceeds credited in the books of account of the assessee in the form of LTCG and STCG which is total amount of Rs. 2,67,83,731/-. The Ld.AO has treated both the transaction as bogus and added back under section 68 of the Act. So, the total amount of Rs. 2,67,83,731/- was added back with the total income. The aggrieved assessee filed an appeal before the ld. CIT(A). The Ld.CIT(A) upheld the assessment order. Being aggrieved, the assessee filed an appeal before us. 4. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Net Stock 7SEAS 7SEAS TECHNOLOGIES L 1000 12149 ADVANCE TECHN 160000 32871 CELESTIAL BIOLABS LT 3000 179 H C L INFOSYSTEMS 4000 32808 HOUSE OF PEARL FASHI 1000 32960 IB SECURITIES 5000 24400 ISHITA DRUGS 30000 31269 KLG SYSTEL 1000 20021 OMAX AUTOS 1000 31467 POLYPRO FIBRILS(I) 65000 31611 PRRANETA INDS. 20000 339 RAIN COMMODITIES LTD 1000 23756 SREI INFRASTRUCTURE 3600 ASHIKA STOCK BROKING LTD F.Y. 2011-2012 Holding as on 31/03/2012 Code Security Name Net Stock 4340 CONFIDENCE 200000 ASHIKA STOCK BROKING LTD F.Y. 2012-2013 Holding as on 31/03/2013 Code Security Name Net Stock 85 CHAMBAL FERTILISERS 2000 4340 CONFIDENCE TRADING 51603 440 HINDALCO INDUSTRIES 2000 32343 TVS MOTOR COMPANY LT 5000 AMRITA A DOSHI Name Date of scrip Closing Quantity BALAJI TELE 2000 Nos CHAMBER FERTILISERS 2000 Nos CORPORATION BANK 150 Nos HINDALCO INDUSTRIES 2000 Nos PETRONET LNG 400 Nos SAMYAK EDUCATION LTD 3600Nos 10150.00 (2) Transaction statement from 21/04/2011 to 31-03-2014, APB pages 5-11 (3) Annual report of Ashika Group Capital Ltd for the year ended 31/03/2014, APB pages 12-67. 6. The Ld.AR mentioned that the same issue was adjudicated by the coordinate bench of ITAT-Mumbai in the case of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee in respect of the long-term capital gains and short-term capital gains earned during the year. As a result, the grounds raised by the assessee are allowed. The Ld.AR further relied on the order of Abhishek Tejraj Doshi vs ITO-19(1) in ITA 2944/Mum/2023, date of pronouncement20/03/2024. The relevant part of the order is reproduced as below: - 14. Further, there is no discrepancies in the documents filed by the assessee claiming the deductions u/s 10(38) of the Act. At the same time, the revenue has not brought on record any materials linking the assessee in any of the dubious transactions relating to entry, price rigging or exit providers. Even in the SEBI report, there is no mention or reference to the involvement of the assessee. We can only presume that the assessee is one of the beneficiary in this transactions merely as an investor who has entered into an investment fray to make quick profile. Even the assessing officer has applied the presumptions and concept of human probabilities to make the additions without their being a try material against the assessee. We observe that the Hon'ble Bombay High Court in the case of Pr. CIT v. Ziauddin A Siddique in Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on record how the assessee is involved in any of the scrupulous activities or directly linked to one of the person who has involved in manipulation/rigging of share prices, entry operator or exit provider. Therefore, there is no material with the tax authorities to substantiate their findings that the impugned transaction is non-genuine. Therefore, we are inclined to allow the ground raised by the assessee. Accordingly, the Ground Nos. 1 to 7 raised by the assessee are allowed. 7. The Ld.DR argued and placed that the said scrip of Ashika Stock Broking was duly suspended by the SEBI on dated 12/02/2010, but finally it is revoked on dated 19/07/2011. The ld. DR argued that the ld. AO also relied on the doctrine of preponderance of human probability to hold that the assessee is indulged in bogus and dubious share transactions. Since he had not been able to adduce cogent evidence in this regard. The Ld.DR argued that the entire transaction is a sham, so the addition should be upheld. The Ld.DR relied on the order of PCIT vs Swati Bajaj (2022) 139 taxmann.com 352 (Cal) and Aakruti Ketan Mehta vs ITO, Ward 35(1)(1) ITA No.53/Mum/2023, date of pronouncement 31/01/2024 held 31. We are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I. T. Act, 1961? 2. We have considered the impugned order with the assistance of the learned Counsels and we have no reason to interfere. There is a finding of fact by the Tribunal that the transaction of purchase and sale of the shares of the alleged penny stock of shares of Ramkrishna Fincap Ltd. ( RFL ) is done through stock exchange and through the registered Stockbrokers. The payments have been made through banking channels and even Security Transaction Tax ( STT ) has also been paid. The Assessing Officer also has not criticized the documentation involving the sale and purchase of shares. The Tribunal has also come to a finding that there is no allegation against assessee that it has participated in any price rigging in the market on the shares of RFL. 3. Therefore we find nothing perverse in the order of the Tribunal. 4. Mr. Walve placed reliance on a judgment of the Apex Court in Principal Commissioner of Income-tax (Central)-1 v. NRA Iron Steel (P.) Ltd. but that does not help the revenue in as much as the facts in that case were entirely different. 5. In our view, the Tribunal has not committed any perversity or applied incorrect principles to the given facts and when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal's order are not vitiated by any error of law apparent on the face of the record either. 7. As/a result of the above discussion, we do not find any substance in the contention of Mr.Sureshkumar that the Tribunal misdirected itself and in law. We hold that the Appeals do not raise any substantial question of law. They are accordingly dismissed. There would no order as to costs. Hon ble Delhi High Court in the case of Pr.CIT vs Smt. Krishna Devi 431 ITR 361 (Del). The relevant paragraph is enclosed herewith: - 12. Mr. Hossain s submissions relating to the spike in the share price and other factors may be enough to show circumstances that might create suspicion; however the Court has to decide an issue on the basis of evidence and proof, and not on suspicion alone. The theory of human behavior and preponderance of probabilities cannot be cited as a basis to turn a blind eye to the evidence produced by the .Respondent. With regard to the claim that observations made by the CIT(A) were in conflict with (he Impugned Order, we may . only note that the said observations are general in nature and later in the order, the CIT(A) itself notes that the broker did not respond to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07/2011, APB Pages 98-134 the suspension on Ashika Stock Broking is revoked. In the orders impugned before us, the theory propounded by the ld. AO suggests largescale generation investment of unaccounted monies took place, but even after conducting an invasive search action, no evidence to support such addition was unearthed. As per the ld. AO, the assessee had earned routed unrecorded income. If that were so, it would have certainly reflected in the investigated documents. The documents in the form of undisclosed sales or bogus expenses etc. The AO has however not been able to bring on record any material or evidence unearthed during search/ investigation which would reveal as to from which income earning activity did the assessee derive such unaccounted monies to support his theory that he had routed such unaccounted monies in the guise of bogus capital gains. The order Aakruti Ketan Mehta (supra) is distinguishable in this point. The order of SEBI never contended that the assessee was involved in price rigging. 9. We find that the shares of Ashika Credit and Capital Limited were purchased from the open market i.e. recognised stock exchange through registered brokers. The purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
