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TMI Blog2022 (11) TMI 1545X X X X Extracts X X X X X X X X Extracts X X X X ..... . Appellant had stated that have brother-in-law was taking care upon trading/investment in shares and that her brother-in-law was in turn, advice for investment consultant. It is pertinent to note that the Assessing Officer has not shown that brother-in-law or investment consultant were part of syndicate. We noticed that the assessee has furnished all documents relating to purchase and sale of securities. The shares have entered and exited his demat account. The purchase and sale transactions have been routed through the bank accounts of the assessee. All these documentary evidences produced by the assessee have not been disproved. An identical case of allegation that the assessee has availed accommodation entries by way of capital gains in order to convert unaccounted money into accounted one, was examined in the case of Shyam Power [2014 (12) TMI 977 - BOMBAY HIGH COURT] Tribunal concluded that this was not mere accommodation of cash and enabling it to be converted into accounted or regular payment. The discrepancy pointed out by the Calcutta Stock Exchange regarding client Code has been referred to. But the Tribunal concluded that itself, is not enough to prove that the trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dematerialised format and were kept in Demat account of the assessee. The assessee had held the shares for two years and during the year under consideration, she has sold a portion of the shares through a reputed broker named M/s JM Financial Services Ltd in stock exchange. The sale proceeds have also been received through banking channel. He submitted that the assessee had also paid Security transaction tax while effecting sale of shares. The Learned AR submitted that the assessee has purchased and sold the shares as an ordinary investor. He submitted that the assessee has furnished all the documents in support of purchase and sale of shares. He submitted that the AO has not found fault with any of the evidences nor did he bring any material on record to disprove those evidences. The entry and exit of shares in the Demat account of the assessee and further the payments made/received through banking channels would prove that the assessee had actually purchased and sold the shares. Hence there is no reason to doubt genuineness of the transactions of purchase and sale of shares. He submitted that the AO has simply placed his reliance on the report given by the investigation wing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not have any knowledge in the share market operations and she has admitted that she purchased these share as per suggestion given by her brother in law Mr. Rajesh Agarwal. Further, she was not able to show any knowledge about this company, its activities or its financial position. He further submitted that the financial position of the company does not justify huge increase in the price of shares. Further, the investigation wing has noticed that the price of these shares has been rigged so that the purchaser of the shares should convert their unaccounted income into the regular income. Accordingly, the learned DR submitted that these facts would show that the assessee herein has also availed bogus long term capital gains. Accordingly, he submitted that no interference is called for in the order passed by the learned CIT(A). 6. We heard rival contentions and perused the record. There is no dispute with regard to the fact that the assessee had purchased the shares of M/s Global Infratech and Finance Ltd (formerly known as M/s Asianlak Capital & finance Ltd) in the year 2011 in physical format by paying money through banking channels. Subsequently, he has dematerialised the sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Assessing Officer and the Commissioner are perverse. The Tribunal proceeded on the footing that onus was on the Department to nail the Assessee through a proper evidence and that there was some cash transaction through these suspected brokers, on whom there was an investigation conducted by the Department. Once the onus on the Department was discharged, according to Mr. Sureshkumr, by the Revenue-Department, then, such a finding by the Tribunal raises a substantial question of law. The Appeal, therefore, be admitted. 4. Mr. Gopal, learned Counsel appearing on behalf of the Assessee in each of these Appeals, invites our attention to the finding of the Tribunal. He submits that if this was nothing but an accommodation of cash or conversion of unaccounted money into accounted one, then, the evidence should have been complete. Change of circumstances ought to have, after the result of the investigation, connected the Assessee in some way or either with these brokers and the persons floating the two companies. It is only, after the Assessee who is supposed to dealing in shares and producing all the details including the DMAT account, the Exchange at Calcutta confirming the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present Assessee to the transactions and which are attributed to the Promoters/Directors of the two companies. The Tribunal referred to the entire material and found that the investigation stopped at a particular point and was not carried forward by the Revenue. There are 1,30,000 shares of Bolton Properties Ltd. purchased by the Assessee during the month of January 2003 and he continued to hold them till 31 March 2003. The present case related to 20,000 shares of Mantra Online Ltd for the total consideration of Rs. 25,93,150/-. These shares were sold and how they were sold, on what dates and for what consideration and the sums received by cheques have been referred extensively by the Tribunal in para 10. A copy of the DMAT account, placed at pages 36 & 37 of the Appeal Paper Book before the Tribunal showed the credit of share transaction. The contract notes in Form-A with two brokers were available and which gave details of the transactions. The contract note is a system generated and prescribed by the Stock Exchange. From this material, in para 11 the Tribunal concluded that this was not mere accommodation of cash and enabling it to be converted into accounted or regular payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at acted as accommodation entry providers. On perusal of the extract of the statement of the Appellant recorded during the assessment proceedings (as reproduced in paragraph 13 of the assessment order) shows that the Appellant had stated that have brother-in-law was taking care upon trading/investment in shares and that her brother-in-law was in turn, advice for investment consultant. It is pertinent to note that the Assessing Officer has not shown that brother-in-law or investment consultant were part of syndicate. On perusal of paragraph 19.9 of the assessment order, it can be seen that the Assessing Officer relied upon the price fluctuations between 18.11.2011 to 08.03.2013 to conclude that there was ragging of prices during the aforesaid period, whereas in the present case, the sales was made during 24.02.2014 to 28.02.2014 when the closing price had fallen to around Rs. 55.4 Per share from the highest trading closing price of Rs. 91.95 per shares. The shares were sold through D-mat account maintained with JM Financial Services Ltd. The Appellant continue to hold 12,837 shares as per statement dated 02.07.2018 placed at page 25 of the paper-book. No other material was brought o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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