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TMI Blog2024 (12) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... en preferred by the Assessee against the orders dated 28.12.2023 16.02.2024, impugned herein, passed by the National Faceless Appeal Center (NFAC)/ Ld. Commissioner of Income Tax (Appeals) (in short Ld. Commissioner) under section 250 of the Income Tax Act, 1961 (in short the Act ) for the A.Y. 2010-11. 2. Both the cases are having identical issue and scrips/shares and therefore for the sake of brevity, we are inclined to adjudicate both the appeals under consideration by this composite order and by taking ITA No.224/M/2024 as a lead case. 3. Coming to ITA No.224/M/2024, in the instant case, the Assessee on 05.01.2009 had purchased the shares of scrip M/s. JMD Tele Films Industry Ltd. @ Rs. 18% each and on a total consideration of Rs. 2,74,973/- through RTGS and online platform i.e. Bombay Stock Exchange (BSE). Subsequently the shares were splitted into 1,50,000 shares. The Assessee subsequently sold the aforesaid shares @ Rs. 123/- each and on a total consideration of Rs. 1,84,38,566/- from 08.01.2010 to 14.01.2010 on the same platform i.e. BSE and consequently earned LTCG to the tune of Rs. 1,81,63,593/- received through RTGS/online mechanism of BSE. 3.1 The Assessee by filing it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o by relying mainly on the judgment passed by the Hon ble Kolkata High Court in the case of PCIT vs. Swati Bajaj (2022) (139 taxmann.com 352) (Cal) and without considering the judgment passed by the Hon ble Jurisdictional High Court in the case of Ziaudddin Siddique vs. ACIT, Mumbai ITA No.5182 5183/M/2011 dated 09.09.2016 though referred in the impugned order, affirmed the aforesaid additions by dismissing the appeal of the Assessee. 5. The Assessee, being aggrieved, is in appeal before us. 6. We have heard the parties and perused the material available on record. The Ld. D.R. at the outset has placed on record one order dated 28.06.2019 passed by the adjudicating authority of SEBI, wherein the M/s. JMD Tele Films Industry Ltd. is also a party against whom the monetary penalty of Rs. 5,00,000/- has been levied by considering the allegations of price rigging of shares by some other persons for the period from 15.06.2009 to 02.07.2009. Admittedly there are no allegations have been leveled and even no investigation has been carried out and no penalty or restriction has been imposed against the Assessee herein. The Assessee by filing the relevant documents duly supported the transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961, ignoring the fact that the shares were bought/acquired from off market sources and thereafter the same was demated and registered in stock exchange and increase in share price of Ramkrishna Fincap Ltd. is not supported by the financials and, therefore, the amount of LTCG of Rs. 1,03,33,925/- claimed by the assessee is nothing but unaccounted income which was rightly added u/s 68 of the I. T. Act, 19617 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 Stock Brokers. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement by the principal officer of the stock exchange or by the company whose shares were involved in these transactions and he held that the Assessing Officer only quoted the facts pertaining to various completely unrelated persons whose statements were recorded and on the basis of unfounded presumptions. He further held that the name of the appellants were neither quoted by any of such persons nor any material relating to the assessee was found at any place where investigation was done by the Investigation Wing The learned Commissioner (Appeals) relying on various orders of the Lucknow Benches and other Benches has allowed relief to the asses- see by placing reliance on the evidence filed by the assessee before the Assessing Officer. I do not find any adversity in the order of the learned Commissioner (Appeals) specifically keeping in view the fact that the Lucknow Benches in a number of cases after relying on the judgment of the hon'ble Delhi High Court in the case of Krishna Devi had allowed relief to various assessees. The concurrent findings of fact have been recorded by the first appellate authority and the Income-tax Appellate Tribunal Thus, no substantial question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is mandatory, therefore, the A.O is directed to rework out the same while giving appellate effect to our order. The Ground of appeal No. 5 is allowed for statistical purposes in terms of our aforesaid observations . 5.5 Coming to the instant case, we reiterate that the Assessee by producing the relevant documents referred to above before the authorities below as well as before us has duly discharged the onus cast upon him u/s 68 of the Act and admittedly there is no adverse order/penalty order against the Assessee. Even otherwise, no role has been attributed and/or established qua rigging of the shares upon the Assessee. Hence, considering the peculiar facts and circumstances in totality, we are inclined to allow the claim of the Assessee u/s 10(38) of the Act, by deleting the additions under consideration. Hence, the additions under consideration are deleted. Thus, the instant appeal i.e. ITA No.224/M/2024 is allowed. 6. Coming to ITA no. 965/M/2024, we observe that in this case identical addition have been made and affirmed by the AO and Ld. Commissioner respectively, hence in view of our judgment in ITA No.224/M/2024, this appeal is also allowed on and additions stands deleted. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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