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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 ..... department. This company was earlier known as M/s. Asianlak Capital & Finance Ltd. Hence the AO took the view that the assessee has availed accommodation entries for generating bogus capital gains. Accordingly, he treated the capital gains as bogus in nature and assessed the same as income of the assessee. The AO also took the view that the assessee would have incurred expenses in procuring the long term capital gains and he estimated the same at 2.50% of sale value of shares and accordingly assessed a sum of Rs. 1,24,183/- towards expenses. The Ld CIT(A) confirmed both the additions and hence the assessee has filed this appeal before the Tribunal. 3. The Learned AR submitted that the assessee had purchased shares in physical format through banking channel in the year 2011 when the name of the company was M/s. Asianlak Capital & Finance Ltd. The name of the company was changed into M/s. Global Infratech & Finance Limited. Subsequently, physical shares were converted into the 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 repu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shyam R. Pawar (2015) 54 Taxmann.com 108 and also decision rendered in the case of CIT Vs. Mukesh Ratilal Marolia (ITA No. 456/2007. He also submitted that the shares of this company are held by the financial institution and also by the Central Government, which fact also disproves the view of the investigation wing that it is a penny stock. Since the transactions are genuine, the AO was not justified in estimating expenses also. Accordingly he submitted that the tax authorities are not justified in assessing the long term capital gains as income of the assessee and also in estimating expenses towards procurement of long term capital gains. 5. The Learned DR, on the contrary, submitted that the Investigation Wing has carried out extensive investigation in respect of modus operandi followed in respect of penny stocks. He submitted that the shares of M/s. Global Infratech & Finance Limited have been identified as one of the penny stocks. He further submitted that the assessee 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigation wing of the department in order to disbelieve the claim of long term capital gain earned by the assessee. Hence, there is merit in the submission of Ld A.R that the assessee has invested in the shares of M/s Global infratech and Finance Ltd as an ordinary investor on the basis of some market information. 8. We notice that 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 by the Hon'ble jurisdictional Bombay High Court in the case of Shyam Power (2015)(54 taxmann.com 108)(Bom). The decision rendered by Hon'ble Bombay High Court in the above said case is extracted below:- "3. Mr. Sureshkumar seriously complained that such finding rendered concurrently should not have been interfered with by the Tribunal. In further Appeal, the Tribunal proceeded not by analyzing this material and concluding that findings of fact concurrently rendered 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely. Out of these two, only Rockey Marketing Pvt.Ltd. is listed in the appraisal report and it is stated to be involved in the modus-operandi. It is on this material that he holds that the transactions in sale and purchase of shares are doubtful and not genuine. In relation to Assessee's role in all this, all that the Commissioner observed is that the Assessee transacted through brokers at Calcutta, which itself raises doubt about the genuineness of the transactions and the financial result and performance of the Company was not such as would justify the increase in the share prices. Therefore, he reached the conclusion that certain operators and brokers devised the scheme to convert the unaccounted money of the Assessee to the accounted income and the present Assessee utilized the scheme. 6. It is in that regard that we find that Mr. Gopal's contentions are well founded. The Tribunal concluded that there was something more which was required, which would connect the 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 partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fall out of the issue or question dealt with by the Tribunal and pertaining to the addition of Rs. 25,93,150/-. Barring the figure of loss that is stated to have been taken, no distinguishable feature can be or could be placed on record. For the same reasons, even this additional question cannot be termed as substantial question of law." In the instant case also, we noticed that the AO has simply relied upon the report of the investigation department and held that the long term capital gains declared by the assessee are not genuine. We noticed that the shares were purchased on 13.09.2011 through stock-trade KKJ Stocks & Company having office in Chennai. The name of this broker does not find mention in paragraph 9.11 of the assessment order wherein in the name of stock brokers, who have admitted to providing accommodation entry of bogus long term capital gains have been mentioned. It is also not the case of the Revenue that the Appellant was a part of syndicate of people that 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 t ..... 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