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TMI Blog2023 (3) TMI 1560X X X X Extracts X X X X X X X X Extracts X X X X ..... ip/shares was accepted as dealt in the above paragraphs and the CIT(A) opined that there cannot be two different actions by the revenue in respect of same scrip/ shares.
AO has failed to make further enquiries/investigations and relied on the statement of third party.
CIT(A) has dealt on the facts and provisions of law and judicial decisions and the applied the ratio of decisions to the present case and deleted the addition.
DR could not controvert the findings of the CIT(A) with any new cogent material or information to take different view. Decided against revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... d show cause notice referred at Para 3.2 of the order. In compliance to the show cause notice, the assessee has filed the detailed submissions referred at Page 12 Para 4 of the order as under: 4. In response to the same the assessee vide letter dated nil submitted as under: In respect of the above said matter, as desired by your good self vide notice under Section 142(1) of the Act dated 0711212017 and under the instructions of the assessee, in respect of the Long Term Gain of Rs. 4,33,71,4681- the following is submitted.- 1. The assessee applied for allotment of 1,65,000 equity shares of M/s Aggarwal Holdings Limited in November 2010. A copy of the application form filed by the assessee for the said allotment is enclosed for your kind perusal. 2. From the perusal of the share application form it is evident that the shares applied for by the assessee were to be allotted in the Demat Account No. 1204940000038156 operated and maintained by him with M/s Indianivesh Securities Limited and the purchase consideration Jar the same was paid vide account payee cheque dt. 08/11/2010 bearing number 893887 drawn on his Indian Bank Account No. 446432706. A copy of bank statement in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing is submitted.- 1. The investigations carried out by Investigation Wing of department which has unearthed the organized racket of generating bogus entries of Long Term Capital Gain and the modus operandi unearthed in investigation has been alleged to be the circumstantial evidence in the case of the assessee company. Although no specific reference regarding involvement of M/s Wagend Infra Ventures Limited has not been made by your good self yet in this regard it is submitted that as a result of enquiries conducted by the department reports are compiled and information are forwarded to the concerned AO's of the beneficiaries. The said reports are appearing in the AIR report of the said persons as "Information related to Trade in Penny Stock". It is not of place to mention here that your good self has provided us with a copy of AIR report which has specific information related to Trade in the quoted shares of certain companies in the case of the assessee which have been found amid held to be Penny Stock companies. From the bare perusal of the said information it is evident that the name Wagend Infra ventures Ltd does not appear in the said list. A copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Statement of the assessee in respect of introducing certain persons to Sh. Akash Aggarwal In this regard it is clarified that during the course of search action the assessee was confronted with the statement of Sh. Akash Agarwal and the assessee was shocked to see his statement wherein he has accepted to be indulged in such a pernicious practice. The assessee thereafter on the basis of statement of Sh. Akash Agarwal and his general understanding about the financial market explained the transactions of his acquaintances in the terms of the statement of Sh. Akash Agarwal. It is pertinent to mention here that neither the assessee nor Sh. Akash Agarwal was found to be involved in operating the prices of shares of M/s Wagend Infra Ventures Limited. Thus, drawing adverse cognizance in this regard only upon suspicion is against the settled principles of law. 3. It is not out of place to mention here that vide Point No. 3(d) of the notice your goodself has enumerated the striking feature of said penny stock companies to be of returning the amount of initial investment in cash and it further understood that at the time of booking of capital gain, bogus capital gain could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each A Y on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. 38. The present appeals concern AYs, 2002-03, 2005-06 and 2006-07.0n the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the search, no additions could have been made to the income al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e informed accordingly, so that the may be furnished in the office of your good self 3. Whereas the AO has discussed on modus operandi at page 18 Para 5.3 to 6.3 of the order in respect of sale of shares and observed that the assessee has obtained artificial long term capital gains. Further the AO has relied on the statement of Mr. Rajkumar Kedia recorded by the DDIT, Delhi Investigation Wing u/s 132(4) of the Act and has referred to the statements and proceedings at page 36 to 40 of the order. Further the AO has dealt on the statement of other operators and the various facts and has issued show cause notice and the assessee has filed the details and explanations referred at Para 8.1 to 8.5 of the AO order. The AO considered the statement recorded under 132(4) of the Act of Mr. Rajkumar Kedia and various transactions and observed that the claim of the exemption of the assessee u/s 10(38) of the Act cannot be accepted and assessed the total income after making addition of Rs.4,33,71,468/- as unexplained cash credit u/s 68 of the Act and assessee the total income of Rs.4,34,79,540/- and passed the order u/s 143(3) r.w.s 153A of the Act dated 30.12.2017. 4. Aggrieved by the order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts that the assessee ventured into bogus long term capital gains on sale of shares and claim exempted u/s 10(38) of the Act. The Ld. DR also submitted that the price of the shares has gone beyond the human probabilities and the AO has considered these facts and made an addition u/s 68 of the Act. Whereas the CIT(A) has took a different view overlooking the AO findings and granted the relief. We find that the Assessee has challenged action of the AO before the CIT(A) on the validity of assessment where no incriminating material was found in the search operations. Further the assessee has obtained the long term capital gains on sale of shares after holding for more than 12 months and claimed exempt. The submissions of the Ld.AR are that 1,65,000 equity shares of Rs.10/- paid up at a premium of Rs.2/- per share were purchased by cheque for Rs.19,80,000/- and were allotted on 7-1-2011 on preferential basis and were reflected in the demat account. Subsequently, in June2012 the company has split these shares @Rs.2/- each paid up (share split ratio 1:5) and the aggregate 8,25,000 shares are allotted to the assessee. The assessee has sold the above shares in the F.Y 2012-13 for aggregatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mistake apparent on the observations of the AO. Actually the share price has increased to Rs.263/-(before split). The assessee has sold the shares after split at average price of Rs. 54.91/- per share and the AO has dealt on the modus operandi and drawn adverse inferences. The assessee has invested in the shares of this company because of his father, who is a old share holder of this company and who has sold the shares and claimed exemption of LTCG and was accepted. Further no evidence was brought on record on the allegations by the A.O except relying on the report of the investigation department and statement recorded. Further the Ld. AR emphasized that there is no opportunity was provided for cross examination as alleged by Mr. Rajkumar Kedia statement that the assessee is involved in activity of obtaining bogus long term capital gains and without providing opportunity of being heard the AO has made the addition u/s 68 of the Act. We found that the assessee is regularly making investments in shares and claiming exemption of long term capital gains u/s 10(38) of the Act. Further the Ld.AR has demonstrated that in the assessee's father case Mr. Tuljaram Jaju, who has claimed exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013. The sale has resulted in a long term capital gain of Rs.4,33,71,468/-. The AO discussed the modus operandi of penny stock shares. The AO relying upon the theory of preponderance of probability and the judgments of the Apex Court in Sumati Dayal vs CIT (1995) 214 ITR 801 (SC) and CIT vs Durga prasad More 82 ITR 540, held that the transactions made by the assessee are akin to the penny stock transactions and treated the long term capital gain declared by the assessee as income u/s. 68 of the Act. 7.1 Aggrieved with this addition, the assessee filed present ground of appeal and made the following submissions: 1. "Ground No. 2 - LTCG assessed as unexplained cash credit u/s 68 only on surmises and presumptions without any incriminating evidences in this regard. a) The appellant during the course of assessment proceedings furnished complete details of the purchase and sale of the equity shares of Investee Company for which the sale proceeds were credited in the bank account of the appellant and thus the onus cast upon him under Section 68 of the Act was duly discharged. b) The appellant during the course of the assessment proceedings stated that the essential featu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. vs. CIT, (1954) 26 ITR 0775. b) Andaman Timber Industries vs. CIT (2015) 127 DTR 0241 (SC) c) H. R. Mehta vs. ACIT, (2016) 289 CTR 0561 (Bom)(HC) d) Kishinchand Chellaram vs. CIT, (1980) ITR 0713 (SC) Ground No. 5 - Submissions rejected only on presumptions and surmises In this regard it is clarified that the Ld. AO has rejected the submissions of the appellant mechanically only on surmises/ conjectures and presumptions. The appellant during the course of assessment proceedings stated that he didn't had income commensurate with the amount of capital gain which he could have routed using the alleged modus operand!. It was further stated that no incriminating evidence in this regard was found during the course of search. The Ld. AO with a predetermined mind to make additions to the income of the appellant presumed that he being evident of the probable search action might have kept the incriminating evidences at some other place. The stated assertion arises out of the presumptions of the Ld. AO and is not tenable under the law. That we have further relying upon the following judgments wherein it has been held that unless and until the Assessing Officer ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee, inspite of a search none of these could be brought out. There was no case of cumulation of cash by the assessee nor cash being routed through any paper company. The AO countered this argument by stating that 'Mr. Sawan kumar Jajoo being in the same line was aware of the facts and he knew that any time he may also be searched by the Income-Tax Department. He was cautious and might have kept the incriminating material at some other premise". This is a mere suspicion and presumption of the AO and an addition cannot be made on the basis of mere presumptions. In this case, the assessee had got the allotment through application and preferential allotment, payment was made on the same day of application, the shares were dematted immediately and were lying in the demat account of the assessee till they were sold. Sale consideration was also received through cheque. The shares price has risen many times in a span of one year, is a fact but treating the sale consideration received as unexplained cash credit merely on the basis of the suspicion cannot be made in view of the overwhelming evidences provided by the assessee. While it is true that the AO should look into the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of those witnesses were made the basis of he impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority In view of the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the Show Cause Notice. We, thus, set aside the impugned order as passed by the Tribunal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis for coming would have no evidentiary or corroborative value to be the basis for coming to an adverse view in the case on hand, since it was recorded behind the assessee's back, from a person who was not involved in the purchase of the said shares and also since the assess.,-:,e was not afforded opportunity for rebuttal of the same and to cross- examine the said person. We are also of the view that the ratio and the factual matrix of the decisions in the cited case, i.e. Jatin Chhadwa (supra), Harkhchand K. Gada(HUF) & others (supra) and Andaman Timber Industries (supra) would be applicable and support the case of the assessee since no adverse finding has been rendered in respect of the direct material evidence placed on record in respect of her transactions of purchase and sale of the 'said Shares' of (4/s. Shukun Constructions Ltd. which stand duly disclosed in her audited Balance Sheet filed with the return of income of assessment years 2004-05 and the current year under consideration. In this factual and legal matrix of the case, as discussed above, we find that the addition of Rs.95,12181211- -/s. 68 of the Act made by the authorities below to be unsustainabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting Rs. 500000/- through her broker "SKP Stock Broking Pvt. Ltd" which was a SEBI registered broker and earned a Long Term Capital Gain of Rs. 2,18,13,072/-. (Copy of the bank statement, brokers contract note together with the delivery instructions given to the DP and broker's confirmation is also placed in the paper book at page no 44 to 65). 7. Copy of Form No. 10DB issued by the broker, in support of charging of S. T. T. in respect of the transactions appearing in the ledger is placed in the paper book at page no. 66. 8. The holding period of the said scrip is more than one year (above 500 days) through in order to get the benefit of claim of Long Term Capital Gain the holding period is required to be 365 days. 12. The assessing officer as well as the Ld. CIT(A) have rejected these evidences filed by the assessee by referring to "Modus Operandi" of persons for earning long term capital gains which his exempt from income tax. All these observations are general in nature and are applied across the board to all the 60,000 or more assessees who fall in this category. Specific evidences produced by the assessee are not controverted by the revenue au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO nor is it put before the assessee. The submission of the assessee that she is just an investor and as she received some tips and she chose to invest based on these market tips and had taken a calculated risk and had gained in the process and that she is not party to the scam etc., has to be controverted by the revenue with evidence. When a person claims that she has done these transactions in a bona fide and genuine manner and was bene fitted, one cannot reject this submission based on surmises and conjectures. As the report of investigation wing suggests, there are more than 60,000 beneficiaries of LTCG. Each case has to be assessed based on legal principles of legal import/aid down by the Courts of law. 15.In our view, just the modus operandi, generalisation, preponderance of human probabilities cannot be the only basis for rejecting the claim of the assessee. Unless specific evidence is brought on record to controvert the validity and correctness of the documentary evidences produced, the same cannot be rejected by the assessee. The Hon'ble Supreme Court in the case of Omar Sa/av Mohamed Salt reported in (1959) 37 ITR 151 (S C) had held that no addition can be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation wing against the assessee. In absence of any finding specifically against the assessee in the investigation wing report, the assessee cannot be held to be guilty or linked to the wrong acts of the persons investigated. In this case, in our view, the Assessing Officer at best could have considered the investigation report as a starting point of investigation. The report only informed the assessing officer that some persons may have misused the script for the purpose of collusive transaction. The Assessing Officer was duty bound to make inquiry from all concerned parties relating to the transaction and then to collect evidences that the transaction entered into by the assessee was also a collusive transaction. We, however, find that the Assessing Officer has not brought on record any evidence to prove that the transactions entered by the assessee which are otherwise supported by proper third party documents are collusive transactions. 17. The Hon'ble Supreme Court way back in the case of Lal chand Bhagat Ambica Ram vs. CIT [1959] 37 ITR 288 (SC) held that assessment could not be based on background of suspicion and in absence of any evidence to support the same, The Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rhyme or reason and merely by a rule of thumb, as it were, came to the conclusion that the possession of 150 high denomination notes of Rs. 1,000 each was satisfactorily explained by the appellant but not that of the balance of 141 high denomination notes of Rs. 1,000 each". The observations of the Hon'ble Apex Court are equally applicable to the case of the assessee. In our view, the assessing officer having failed to bring on record any material to prove that the transaction of the assessee was a collusive transaction could not have rejected the evidences submitted by the assessee. In fact, in this case nothing has been found against the assessee with aid of any direct evidences or material against the assessee despite the matter being investigated by various wings of the Income Tax Department hence in our view under these circumstances nothing can be implicated against the assessee. 18. We now consider the various propositions of law laid down by the Courts of law. That cross-examination is one part of the principles of natural justice has been laid down in the following judgments: a) Ayaaub khan Noor khan Pathan vs. The State of Maharashtra and Ors. " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements are provided to the government servant, he will not be able to conduct an effective and useful cross examination. 29. In Rajiv Arora v. Union of India and Ors. AIR 2009SC 1100, this Court held: Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Indian Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the Appellant by such non- examination. If the basic principles of law have not with or there has been a gross violation of natural justice, the High Court should have exercised its jurisdiction of judicial review. 30. The aforesaid discussion makes it evident that, not only should the opportunity of cross-examination be made available, but it should be one of effective cross examination, so as to meet the req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court Appeal No. 2216 of 2000, order dated 17-3- 2005[2005 (187) E.L. T. A33 (S. C.)] was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions. 7. In view the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the a foresaid two witnesses was the only basis of issuing the show cause notice." 19. On similar facts where the revenue has alleged that the assessee has declared bogus LTCG, it was held as follows: a) The CALCL/7TAHIGH COURT in the case of BLBCABLES &CONDUCTORS[ITA No. 78 of20i 7] dated 9. 06.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in both the cases added the appreciation to the assessee's' income on the suspicion that these were fictitious transactions and that the appreciation actually represented the assessee's' income from undisclosed sources. In ITA-18-2017 also the CIT (Appeals) and the Tribunal held that the Assessing Officer had not produced any evidence whatsoever in support of the suspicion. On the other hand, although the appreciation is very high, the shares were traded on the National Stock Exchange and the payments and receipts were routed through the bank. There was no evidence to indicate for instance that this was a closely held company and that the trading on the National Stock Exchange was manipulated in any manner." The Court also held the following vide Page 3 Para 5 the following: "Question (iv) has been dealt with in detail by the CIT (Appeals) and the Tribunal. Firstly, the documents on which the Assessing Officer relied upon in the appeal were not put to the assessee during the assessment proceedings. The CIT (Appeals) nevertheless considered them in detail and found that there was no co-relation between the amounts sought to be added and the entries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot; f) The BENCH "A"OF KOLKATAITAT in the case of SHALEENKHEMANIUTA No.1945/Ko1/2014Jorder dated 18.10.2017 held as under vide Page 24 Para 9.3: "We therefore hold that there is absolutely no adverse material to implicate the assessee to the entire gamut of unwarranted allegations leveled by the Id A0against the assessee, which in our considered opinion, has no legs to stand in the eyes of law. We find that the Id DR could not controvert the arguments of the Id AR with contrary materi,-31 evidences on record and merely relied or the orders of the AO. We find that the allegation that the assessee and / or Brokers getting involved in price rigging of SOICL shares fails. It is also a matter of record that the assessee furnished all evidences in the form of bills, contract notes, demat statements and the bank accounts to prove the genuineness of the transactions relating to purchase and sale of shares resulting in LTCG. These evidences were neither found by the Id AO to be false or fabricated. The facts of the case and the evidences in support of the assessee's case clearly support the claim of the assessee that the transactions of the assessee were bonafide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revalent in the Stocks Exchange. Such finding of fact has been recorded on the basis of evidence produced on record. The Tribunal has affirmed such finding. Such finding of fact is sought to be disputed in the present appeal. We do not find that the finding of fact recorded by the Commissioner of Income Tax in appeal, gives give rise to any question(s) of law as sought to be raised in the present appeal. Hence, the present appeal is dismissed." i) The Hon'ble Jurisdictional Calcutta High Court in the case of CIT vs. Bhagwati Prasad Agarwal in I.T.A. No. 22/Ko1/2009 dated 29.04.2009 at para 2 held as follows: "The tribunal found that the chain of transaction entered into by the assessee have been proved, accounted for, documented and supported by evidence. The assessee produced before the Commissioner of Income Tax(Appeal) the contract notes, details of his Demat account and, also, produced documents showing that all payments were received by the assessee through bank." j) The Hon'ble Supreme Court in the case of PCIT vs. Teju Rohit kumar Kapadia order dated 04.05.2018 upheld the following proposition of law laid down by the Hon'ble Gujrat High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plete as per the Contract Act, therefore, the assessee is not concerned with any way of the broker. Nowhere the AO has alleged that the transaction by the assessee with these particular broker or share was bogus, merely because the investigation was done by SEBI against broker or his activity, assessee cannot be said to have entered into ingénue transaction, insofar as assessee is not concerned with the activity of the broker and have no control over the same. We found that M/s. Basant Periwal and Co. never stated any of the authority that transaction in M/s. Ramkrishna Fin cap Pvt. Ltd. on the floor of the stock exchange is in genuine or mere accommodation entries. The CIT(A) after relying on the various decision of the coordinate bench, wherein on similar facts and circumstances, issue was decided in favour of the assessee, came to the conclusion that transaction enteric by the assessee was genuine. Detailed finding recorded by CIT(A) at para 3 to 5 has not been controverter by the department by bringing any positive material on record. Accordingly, we do not find any reason to interfere in the findings of CIT(A). Moreover, issue is also covered by the decision of jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT Vs. Shyam R Pawar, [2015] 54 taxmann.com 108 (Bom) Section 68 of the Income-tax Act, 1961 - Cash credit (Share dealings) - Assessment years 2003-04 to 2006-07 - Assessee declared capital gain on sale of shares of two companies - Assessing Officer, observing that transaction was done through brokers at Calcutta and performance of concerned companies was not such as would justify increase in share prices, held said transaction as bogus and having been done to convert unaccounted money of assessee to accounted income and, therefore, made addition under section 68 - On appeal, Tribunal deleted addition observing that DMAT account and contract note showed credit/details of share transactions; and that revenue had stopped inquiry at particular point and did not carry forward it to discharge basic onus - Whether on facts, transactions in shares were rightly held to be genuine and addition made by Assessing Officer was rightly deleted - Held, yes [Para 7] [In favour of assessee] 11. Similarly, the Hon'ble Jurisdictional High Court in the case of Pr. CIT Vs Ziauddin A Sidhique, ITA No. 2012 of 2017 has observed at page 1 to 5 as under: 1. The following question of law is proposed: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of similar companies through same broker could not be a ground to hold that transactions were sham and bogus, especially when documentary evidence was produced to establish genuineness of claim [In favour of assessee] The assessee had claimed/offered long-term capital gains on sale of shares of various listed companies, which was accepted by the Assessing Officer. Subsequently, there was a search action in the case of various assessees belonging to a group known as Haldiram group. The group offered additional income of Rs. 2 crores, out of which Rs. 3 lakhs were offered in the hands of the assessee. The Assessing Officer on the basis of the seized material issued notice under section 153A and subsequently, passed an assessment order under section 153A wherein he computed the total income by disallowing the long-term capital gain and added the entire sale proceeds received on sale of shares as income from undisclosed sources under section 68. The revenue was of the opinion that most of the sales of the shares effected by the group were of the same companies and through the same brokers. The Commissioner (Appeals) as well as the Tribunal deleted the addition. 13. Further the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is involved in the present appeal. The matter is concluded by findings of fact. 14. The Hon'ble Tribunal in the case of Nishith Rameshchandra Shah Vs. ITO, ITA No. 1116/Mum/2022 has observed at Para 5 of the order as under: 5. Having heard the rival submissions and perused the materials available on record, we are of the considered opinion that the AO has reopened the assessee's case based on the information received from the investigation wing. It is pertinent to point out that the assessment order in the present case does not have any mention about the independent inquiry that was conducted by the AO relevant to the impugned transaction. It is also observed that the AO has failed to examine the alleged Directors of M/s. Diamant Infrastructure Limited as to the nature of business carried out by the said company nor has the AO examined the alleged brokers involved in the impugned transactions. We would like to place our reliance on the decision cited by the assessee in the case of DCIT Vs. Sunita Khumka ITAT, (Cul.) (2016) ITRV- ITATCUL.-057 which held that the transaction cannot be held to be bogus merely on the basis of suspicion or surmise and that the AO has to substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that the assessee has discharged its burden on submitting the information in the proceedings. Further in the case of the assessee's father case, the long term capital gains on sale of same scrip/shares was accepted as dealt in the above paragraphs and the CIT(A) opined that there cannot be two different actions by the revenue in respect of same scrip/ shares. Further the AO has failed to make further enquiries/investigations and relied on the statement of third party. We found the CIT(A) has dealt on the facts and provisions of law and judicial decisions and the applied the ratio of decisions to the present case and deleted the addition. Further the Ld. DR could not controvert the findings of the CIT(A) with any new cogent material or information to take different view. We considered the facts, circumstances, submissions as discussed above are of the view that the CIT(A) has passed a reasoned and conclusive order. Accordingly we do not find any infirmity in the order of the CIT(A) on this disputed issue and uphold the same and dismiss the grounds of appeal of the revenue. 16. In the result, the appeal filed by the revenue is dismissed. Order pronounced in the open court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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