Nitin Kumar Agarwal , Siliguri V. ITO, Ward - 2(4), Siliguri , Siliguri

ITA 1096/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5187 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 02-07-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 22-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER
• Keywords: Unexplained cash credit; Business income; Principle of natural justice; Set aside
• Section: 271(1)(c); 69C; 143(3); 147; 131; 68

Judgement Text

1 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. , SMC , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: K OLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 1096/KOL/2018 ASSESSMENT YEAR: 2013-14 NITIN KUMAR AGARWAL (PAN: ADMPA2375P VS. ITO, WARD 2(4), SILIGURI APPELLANT RESPONDENT DATE OF HEARING 02.07.2019 DATE OF PRONOUNCEMENT 23.08.2019 FOR THE APPELLANT SHRI SUBASH AGARWAL, ADVOCATE FOR THE RESPONDENT SHRI SANKAR HALDER, JCIT, SR. D R ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), SILIGURI DATED 09.04.2018 FOR AY 2013-14. 2. GROUND NOS. 1 AND 2 OF ASSESSEES APPEAL IS AGAI NST THE ACTION OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.16,19,881/- MADE BY T HE AO U/S. 68 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) IN RESP ECT OF SALE PROCEEDS OF SHARES OF M/S. QUEST FINANCIAL SERVICES LTD. (IN SHORT M/S. QFSL) CLAIMING FOR LTCG TREATING THE SAME AS UNEXPLAINED CASH CREDIT AND CONFIRMING THE ADDITION OF RS.80,994/- ON ACCOUNT OF PAYMENT OF COMMISSION. 3. THE BRIEF FACTS OF THE ISSUE ARE THAT THE ASSESS EE CLAIMED LONG TERM CAPITAL GAINS OF RS.16,19,881/-. THE AO NOTED THAT THE ASSESSEE HAS CLAIMED LTCG OF RS.16,19,881/- AS HOLDING PERIOD IS MORE THAN TWELVE MONTHS ON SALE OF SHARES AND CLAIMED EXEMPTION U/S. 10(38) OF THE ACT. ACCORDING TO AO, THE ASSESSEE HAS BOUGHT 200 SHARES OF M/S. REWARD AGENCIES PVT. LTD. (M/S. RAPL) ON 07.12.2010. THE FACE VALUE OF THESE SHARES ARE RS. 10/- 2 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. EACH AND ASSESSEE HAVE PURCHASED THESE SHARES AT RS .500/- PER SHARE FOR A TOTAL INVESTMENT OF RS.1,00,000. ON AMALGAMATION OF M/S. REWARD AGENCI ES PVT. LTD. WITH QUEST FINANCIAL SERVICES LTD. THE ASSESSEE WAS ALLOTTED 100 SHARES OF QUEST FINANCIAL SERVICES LTD. FOR EVERY SHARE OF M/S. RAPL. ACCORDINGLY, THE ASSESSEE BECA ME OWNER OF 20000 SHARES OF QUEST FINANCIAL SERVICES LTD. ON 20.01.2012. THEREAFTER THE ASSESSEE HAD SOLD 20000 SHARES OF M/S. QFSL ON 22.02.2013 AND 25.02.2013 AT A TOTAL C ONSIDERATION OF RS.17,19,881/-. THE AO OBSERVED THE SCRIP OF NAMED M/S. QFSL IS IN THE LIST OF SUSPICIOUS TRANSACTION AND, ONE OF THE REASONS FOR SCRUTINY SELECTION WAS TO EXAMIN E THE SUSPICIOUS TRANSACTION IN PENNY STOCK, THE NATURE AND THE CIRCUMSTANCES OF THE TRAN SACTION. THE A.O. HAS RELIED UPON THE INVESTIGATION REPORT OF DDIT (INV.), UNIT-2(3), KOL KATA TO DISBELIEVE THE ASSESSEE AND HAS ADDED THE LTCG CLAIM MADE BY ASSESSEE AS UNDISCLOSE D INCOME U/S. 68 OF THE ACT. THIS ACTION WAS CONFIRMED BY LD. CIT(A). HOWEVER, THE LD . A/R ASSAILING THE ACTION HAD SUBMITTED THAT THE ASSESSEE HAD PRODUCED ALL RELEVA NT PAPERS SUCH AS PURCHASE BILL, SALE BILL, BANK STATEMENT, CONTRACT NOTE, DEMAT STATEMENT, SHA RE BROKER LEDGER ETC. AND BY DOING SO, THE ASSESSEE HAS DISCHARGED THE LIABILITIES TO PROVE TH E GENUINENESS OF THE TRANSACTIONS BUT, ACCORDING TO HIM, THE AO IGNORED ALL EVIDENCES AND ON WHIMSICAL FACTS ADDED THE LTCG. THE LD. A/R HAS FURTHER STATED THAT THE A.O. WAS IN FLUENCED WITH OTHER CONSIDERATION THAT THE SHARE BROKERS WERE FOUND GUILTY AND THUS SUSPEN DED BY THE CALCUTTA STOCK EXCHANGE. THE A.O. ALSO ALLEGED THAT THE SALE PRICE OF THE SH ARES WAS ABNORMALLY HIGH, WHICH LED HIM TO DOUBT THE GENUINENESS OF SALE TRANSACTIONS. HOWE VER, ACCORDING TO LD. AR, THERE IS NO MATERIAL ON RECORD WHICH COULD LEAD TO A CONCLUSION THAT THE TRANSACTIONS WERE A DEVICE TO CAMOUFLAGE ACTIVITIES TO DEFRAUD THE REVENUE. THE L D. AR PLACED RELIANCE ON VARIOUS JUDICIAL PRONOUNCEMENTS AND PLEADED THAT THE ASSESSEES CLA IM TO BE ALLOWED. PER CONTRA, THE LD. DR DREW OUR ATTENTION TO THE AOS OBSERVATION IN A SSESSMENT ORDER THAT THE ASSESSEE IS ONE OF THE 'BOGUS LTCG' UNCOVERED BY THE INVESTIGATION WING OF THE DEPARTMENT IN IT'S SURVEY OF THE BUSINESSES OF PRAKASH JAJODIA, AN ENTRY OPER ATOR IN KOLKATA. THE STATEMENT OF PRAKASH JAJODIA U/S. 131 WAS RECORDED AND HE HAS STATED AS FOLLOWS - SIR, NAME OF MY COMPANY THROUGH WHICH I HAVE PROVI DED ACCOMMODATION ENTRY AS BOGUS LONG TERM CAPITAL GAIN IS, QUEST FINANCIAL SERVICES LTD. THIS COMPANY IS LISTED WITH CALCUTTA STOCK EXCHANGE. REGISTERED OFFICE OF THIS COMPANY IS CENTRE POINT 21, HEMANTA BASU SARANI, ROOM NO. 230, 2 ND FLOOR, KOLKATA-01. MYSELF IS THE MANAGING DIRECTO R OF THIS COMPANY. I DECIDE ALL THE AFFAIRS OF COMPANY. 3 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. I HAVE MANAGED THIS AFFAIRS WITH THE HELP OF OTHER ENTRY OPERATORS, LIKE VINOD KUMA5R JAJOO AND MR. BALKRISHAN SIKARIA. I HAVE KEPT DEMAT SHA RES WITH PEOPLE LIKE MR. JAJOO. WHEN BENEFICIARIES COME TO ME FOR HAVING LONG TERM CAPIT AL GAIN ENTRY, I USED TO GET IT DONE WITH THE HELP OF JAJOO AND SIKARIA. JAJOO HAS ARRANGED CASH DEPOSITS AND SUBSEQUENT TRANSFERS OF CHEQUES WHILE AS M/R. BALKRISHAN SIKARIA. THE LD. DR DREW OUR ATTENTION TO THE OBSERVATION OF AO THAT APART FROM THE FINDINGS OF THE DDIT (INV) , UNIT-2(3), KOLKATA, AS DISCUSSE D ABOVE, IT IS ALSO APPARENT FROM THE DOCUMENTS SUBMITTED BY ASSESSEE THAT THE SHARES OF M/S REWARD AGENCIES PVT. LTD. PURCHASED BY ASSESSEE WERE ORIGINALLY ISSUED TO SAR OVER DEALERS (P) LTD. WHICH IS CONTROLLED BY ENTRY OPERATOR, SRI PRAKASH JAJODIA. ACCORDING T O AO, IT IS EVIDENT THAT ADMISSIONS MADE BY RAJESH KURMI, DUMMY DIRECTOR OF RAPL AND PRAKASH JAJODIA, THE ENTRY OPERATOR, CLEARLY INDICATE THAT THE INVESTMENTS MADE BY THE A SSESSEE IN RAPL AND EVENTUAL SALE OF THE SHARES OF QUEST FINANCIAL SERVICES LTD FOR LTCG ARE NOTING BUT PAPER TRANSACTIONS IN JAMAKHARCHI COMPANIES. THEREFORE, ALL THE FACTS LED THE AO TO COME TO A CONCLUSION THAT THE SALE/PURCHASE OF THE SHARES OF M/S. QFSL MADE BY THE ASSESSEE IS NOTHING BUT A SHAM TRANSACTION. THE LD. DR CONTENDE D THAT ONLY THEREAFTER, THE AO REQUESTED THE ASSESSEE TO SHOW CAUSE AS TO WHY THE SAID SUM OF RS. 16,19,881/- AND RS. 80,994/- NOT TO BE ADDED IN ASSESSEES TOTAL INCOME . IN RESPONSE THE ASSESSEE SUBMITTED DETAILED EXPLANATION WHICH WAS NOT SATISFACTORY IN THE OPINION OF THE AO. THEREFORE, THE AO REJECTED THE EXPLANATION OF THE ON THE BASIS OF SIT REPORT AND SO, THE AO DID NOT ACCEPT THE ASSESSEES CLAIM OF LTCG AND EXEMPTION THEREOF CLAIMED BY THE ASSESSEE. THEREAFTER, THE AO TREATED THE SAME AS CASH CREDIT U/S 68 OF TH E ACT AND ADDED THE ENTIRE LTCG TO THE INCOME OF THE ASSESSEE AND ALSO THE COMMISSION EXPE NSES AS UNEXPLAINED INCOME. ACCORDING TO LD. DR, IN THIS FACTUAL CONTEXT, ON FI RST APPEAL, THE LD. CIT(A) DISMISSED THE GROUNDS RAISED BY THE ASSESSEE AGAINST HIS CLAIM OF EXEMPTION U/S 10(38) OF THE ACT AND ALSO CONFIRMED THE ADDITIONS ON ACCOUNT OF COMMISSI ON EXPENSES MADE BY THE AO UNDER SECTION 68 OF THE ACT AND HE DOES NOT WANT US TO IN TERFERE WITH THE ORDERS OF THE AUTHORITIES BELOW AND HAS CITED 23 CASE LAWS WHICH I WILL DISCU SS INFRA. 4. I HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. AT THE TIME OF HEARING IT WAS BROUGHT TO MY NOTICE BY THE LD. AR THAT THIS TRIBUNAL IN 4 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. THE CASE OF ACCHYALAL SHAW VS. ITO IN ITA NO. 1977/ KOL/2008 , AY 2003-04 DATED 16.01.2009 HAVE ACCEPTED THE SCRIPS OF M/S. QFSL AS NOT BOGUS AND HELD THAT THE LTCG CLAIM OF THE ASSESSEE NEEDS TO BE ALLOWED: ON HEARING THE RIVAL SUBMISSIONS, PERUSING THE CA SE RECORD ALONG WITH THE CASE LAWS AND PLACING RELIANCE ON VARIOUS DECISIONS IT TRANSPIRES THAT IN A TRANSACTION LIKE THIS (ALL OFF- MARKET TRANSACTIONS) ANY ENQUIRY FROM THE STOCK EXC HANGE WILL NOT YIELD RESULT IN FAVOUR OF THE REVENUE. THE REVENUE HAS TO SEE WHETHER THE SAL E HAS BEEN EFFECTED OR NOT AS PER THE DOCUMENTS AND AS PER THE ACCEPTANCE AND ADMISSION O F THE RESPECTIVE STOCK BROKERS. AS IT HAS BEEN ASSERTIVELY ARGUED BY THE LEARNED AUTHORIS ED REPRESENTATIVE IN THIS CASE THAT BOTH THE STOCK BROKERS HAD NOT DENIED THE TRANSACTIONS A ND THE CAPITAL GAIN HAS BEEN SHOWN, THE AO SIMPLY BY CASTING DOUBT FOR ALLEGED PURCHASE OF HOUSE PROPERTY FOR RS. 11,00,000 CANNOT TREAT THE SAME AS CASH CREDIT AND CANNOT TAKE THE S AME IN HIS CASH CREDIT. IN OUR CONSIDERED OPINION, SUSPICION CANNOT REPLACE THE REAL EVIDENTI AL DOCUMENT. SIMPLY BY ARGUING IT TO BE A CASE OF MANIPULATION THE REVENUE IS NOT SUPPOSED TO SUCCEED IN THEIR CONTENTION WITHOUT PROPER EVIDENCE. HOLDING THIS VIEW OF THE MATTER ON THE FACTUAL MATRIX AND RESPECTFULLY FOLLOWING THE CASE LAWS CITED ABOVE WE ALLOW THE AS SESSEE'S SECOND APPEAL. COMING TO THE CASE IN HAND, THE LD. AR SHRI SUBASH AGARWAL, ADVOCATE PAINSTAKINGLY TOOK US THROUGH THE PAPER BOOK AND I NOTE THAT THE ASSES SEE HAS CLAIMED LTCG OF RS.16,19,881/- AFTER HOLDING SHARES OF M/S. QFSL FOR A PERIOD OF M ORE THAN TWELVE MONTHS AND ON SALE OF SHARES, AND REMITTING STT HAD CLAIMED EXEMPTION OF THE SAME U/S. 10(38) OF THE ACT. I NOTE THAT THE ASSESSEE HAS BOUGHT 200 SHARES OF M/S. REW ARD AGENCIES PVT. LTD. (M/S. RAPL) ON 07.12.2010 (PAGE 8PB). THE FACE VALUE OF THESE SHA RES ARE RS. 10/- EACH AND ASSESSEE HAVE PURCHASED THESE SHARES AT RS.500/- PER SHARE FOR A TOTAL INVESTMENT OF RS.1,00,000. ON AMALGAMATION OF M/S. REWARD AGENCIES PVT. LTD. WITH QUEST FINANCIAL SERVICES LTD. THE ASSESSEE WAS ALLOTTED 100 SHARES OF QUEST FINANCIAL SERVICES LTD. FOR EVERY SHARE OF M/S. RAPL. ACCORDINGLY, THE ASSESSEE BECAME OWNER OF 20 000 SHARES OF QUEST FINANCIAL SERVICES LTD. ON 20.01.2012. THEREAFTER THE ASSESS EE HAD SOLD 20000 SHARES OF M/S. QFSL ON 22.02.2013 AND 25.02.2013 AT A TOTAL CONSIDERATI ON OF RS.17,19,881/-. FROM A PERUSAL OF THE PURCHASE CONTRACT NOTE/BILL PLACED AT PAGE 8 OF THE PAPER BOOK WHEREIN I NOTE THAT ASSESSEE HAD PURCHASED 200 SHARES OF (M/S. RAPL) O N 07.12.2010 AND SOLD IT WHICH IS EVIDENT FROM THE SALE CONTRACT NOTE PLACED AT PAGES 35 TO 36 OF THE PAPER BOOK. I HAVE ALSO GONE THROUGH THE DEMAT STATEMENT FOUND PLACED AT PA GES 39 TO 40 OF THE PAPER BOOK AND BANK STATEMENT WHICH IS FOUND PLACED AT PAGES 37 TO 38 OF THE PAPER BOOK WHICH SHOWS THAT THE PURCHASE AND SALE CONSIDERATION HAVE PASSED THR OUGH THE BANKING CHANNEL AND THE SHARES WERE IN DEMAT ACCOUNT AND SALE TOOK PLACE ELECTRONI CALLY THROUGH THE PLATFORM OF STOCK 5 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. EXCHANGE AND ASSESSEE HAS REMITTED STT. THUS, THE A SSESSEE HAD DISCHARGED THE ONUS CASTED UPON HIM TO MAKE THE CLAIM. HOWEVER, THE AO WITHOUT FINDING ANY FAULT WITH THE DOCUMENTS AS DISCUSSED [SUPRA] HAS RELIED ON THE TH IRD PARTY STATEMENTS WHICH WERE TAKEN BEHIND THE BACK OF ASSESSEE; AND NEITHER THE COPY O F WHICH WAS GIVEN TO THE ASSESSEE NOR AN OPPORTUNITY TO CROSS EXAMINE THE MAKERS OF THE STAT EMENT MAKE THE RELIANCE OF THE STATEMENT BY AO BAD IN LAW AS HELD BY THE HONBLE SUPREME COU RT IN CASE OF CCE VS. ANDAMANTIMBER INDUSTRIES 127 DTR 241(SC) AND CANNOT BE THE BASIS TO DISALLOW THE CLAIM AND WITHOUT FINDING FAULT WITH THE EVIDENCES FURNIS HED BY THE ASSESSEE. 5. IT IS NOTED THAT THE FACTS OF THE CASE OF THE A SSESSEE ARE IDENTICAL WITH THE FACTS IN THE ABOVE CASE WHEREIN THE CO-ORDINATE BENCH OF THE TRI BUNAL HAS DELETED THE ADDITION IN THE CASE OF ACCHYALAL SHAW (SUPRA) IN RESPECT OF SALE O F SHARES OF M/S QFSL. I, THEREFORE, RESPECTFULLY FOLLOWING THE SAME AND THE FACTS IN TH E INSTANT CASE AS TAKEN NOTE IN PARA 2 SUPRA AND DISCUSSIONS, AM INCLINED TO SET ASIDE THE ORDER OF LD. CIT(A) AND DIRECT THE AO NOT TO TREAT THE LONG TERM CAPITAL ON SALE OF SHARE S OF M/S QFSL AND ALSO THE COMMISSION EXPENSES AS BOGUS AND DELETE THE CONSEQUENTIAL ADDI TIONS. THEREFORE, THE APPEAL OF ASSESSEE IS ALLOWED. 6. GROUND NO. 2 IS IN RESPECT OF CONFIRMING THE ADD ITION OF RS.80,9945/- ON ACCOUNT OF COMMISSION PAYMENT FOR EARNING THE LTCG U/S. 69C OF THE ACT. SINCE, WE HAVE ALLOWED THE ASSESSEES CLAIM OF LTCG, THE CONSEQUENTIAL EXPENSE S INCURRED BY THE ASSESSEE IN THIS REGARD IS ALSO ALLOWED. 7. BEFORE I PART, I WOULD LIKE TO DEAL WITH THE CASE L AWS CITED BY LD. DR IN REVENUE SUPPORT. I NOTE THAT THE SAID JUDICIAL PRONOUNCEMEN TS ARE ALL DISTINGUISHABLE ON FACTS AS WELL AS ON LAW. THE SAID DECISIONS ARE DEALT WITH HEREI N BELOW IN SERIATIM AS UNDER: 1. RATNAKAR M. PUJARI VS. ASSESSEE -ITA NO.995/MUM/201 2, ORDER DT. 3RD AUGUST, 2016 [AY 2006-07] -ITAT MUMBAI IN THIS CASE THE ITAT, MUMBAI BENCH WERE CONSIDERIN G A CASE WHERE THE PURCHASES OF SHARES WERE TREATED AS BOGUS AND SHAM TRANSACTIO NS BY THE REVENUE IN THE IMMEDIATELY PRECEDING FINANCIAL YEAR 2005-06 AND TH E SAID FINDINGS OF THE AO WITH 6 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. RESPECT TO BOGUS AND SHAM PURCHASES WERE NOT CHALLE NGED BY THE ASSESSEE. IN SUCH FACTS OF THE CASE THE TRIBUNAL HAD TREATED THE EXEM PT LONG TERM CAPITAL GAINS ARISING ON SALES OF SHARES AS BOGUS AND SHAM. HOWEVER, THER E IS NO SUCH FINDING OF FACT IN THE INSTANT CASE AND THUS THE FACTS IN THE INSTANT CASE ARE DISTINGUISHABLE. IT WAS BROUGHT TO MY NOTICE THAT THE AFORESAID ORDE R OF ITAT, MUMBAI, INTER-ALIA, HAD BEEN DISTINGUISHED BY CO-ORDINATE BENCHES OF THE TR IBUNAL IN THE FOLLOWING CASES: A. KAUSHALYA AGARWAL VS. ITO [ITA NO.194/KO/2018, O RDER DT. 03.06.2019 (KOL, ITAT)] B. MEENU GOEL VS. ITO [2018] 94 TAXMANN.COM 158 (DE L-TRIB) 2. RITU SANJAY MANTRY VS. ITO - ITA NO.2003/MUM/2017, ORDER DT. 9TH FEBRUARY, 2018 - ITAT MUMBAI IN THIS CASE IS THAT WAS REOPENED BY THE AO ON THE BASIS OF INFORMATION RECEIVED FROM OFFICE OF DGIT (C&IB), NEW DELHI THAT THE ASSESSEE HAD TAKEN ACCOMMODATION ENTRY FROM M/S. MAGASAGAR SECURITIES PVT. LTD. (A COMPAN Y IN THE MAHASAGAR SECURITIES PVT. LTD. GROUP SHARE SCAM CASE) OF RS.10,32,289/-. SUBSEQUENTLY THE ASSESSMENT WAS COMPLETED U/S. 147 R.W.S. 143(3) OF THE ACT AFTER M AKING AN ADDITION OF RS.10,39,289/- ON ACCOUNT OF BOGUS SHARE TRANSACTIO NS AND RS.20,786/- BEING COMMISSION PAID TO THE BROKER FOR ARRANGING ACCOMMO DATION ENTRIES IN THE FORM OF SHARE TRANSACTIONS. THE AO HAD GIVEN A FINDING THAT THE ASSESSEE HAD TAKEN ENTRIES FROM MAHASAGAR SECURITIES PVT. LTD. INVOLVED IN THE SHARES SCAM CASE FOR RS.10,39,289/- FOR BOGUS SPECULATION PROFIT DURING THE FINANCIAL YEAR 2007 -08. IT WAS FURTHER FOUND BY THE AO THAT THE ASSESSEE HAS PAID CASH OF EQUIVALENT AMOUNT AND RECEIVED BACK BY CHEQUE AND BOGUS CONTRACT NOTES AN D BILLS FOR THE TRANSACTIONS NOT ACTUALLY ROOTED THROUGH STOCK EXCHANGE. IT IS NOTE D THAT THE ITAT, MUMBAI HAD RELIED UPON AND FOLLOWED THE JUDGMENT OF HON'BLE BO MBAY HIGH COURT IN SANJAY BIMALCHAND JAIN V. PCIT, ORDER DATED 10.04.2017 (BO M.), BEING JUDGMENT OF JURISDICTIONAL HIGH COURT. HOWEVER, IN THIS CASE, THE AO OBSERVED THAT THE ASSESSEE HAD TAKEN ENTRIES AND PAID CASH OF EQUIVALENT AMOUN T AND RECEIVED BACK BY CHEQUE. AND ON THE BASIS OF SUCH ADVERSE INFERENCE, THE TRI BUNAL CONFIRMED THE ADDITION 7 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. MADE BY THE AO. HOWEVER, IN THE PRESENT CASE IN HAN D, THERE IS NO SUCH FINDING MADE BY THE AO. FURTHER. IT IS NOTED THAT THE ABOVEMENTIONED JUDGME NT OF ITAT, MUMBAI BENCH HAS BEEN CONSIDERED AND DISTINGUISHED BY THE ITAT, KOLK ATA BENCHES AND OTHER BENCHES OF THE TRIBUNAL, INTER-ALIA, IN THE FOLLOWING CASES : A. SATYANARAYAN SARIA VS. ITO [ITA NO.1224/KOIL2016 , ORDER DT. 28.06.2019 (KOL ITAT)] B. KAUSHALYA AGARWAL VS. ITO [ITA NO.194/KOIL2018, ORDER DT. 03.06.2019 (KOL, ITAT)] C. MEENU GOEL VS. ITO [2018] 94 TAXMANN.COM 158 (DE L-TRIB) REFERENCE IS ALSO MADE TO THE RECENT JUDGMENT DATED 01.07.2019 RENDERED BY THIS TRIBUNAL IN THE CASE OF APARNA MISRA VS. ITO (ITA N O. 161/KOL/2019) WHEREIN THE TRIBUNAL HAD RELIED UPON THE FOLLOWING JURISDICTION AL CALCUTTA HIGH COURT JUDGMENTS TO DECIDE SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE. I) M/S CLASSIC GROWERS LTD. VS. CIT [ITA NO. 129 O F 2012] II) CIT VS. LAKSHMANGARH ESTATE & TRADING CO. LIMIT ED [2013] 40 TAXMANN.COM 439 (CAL) III) CIT V. SHREYASHI GANGULI [ITA NO. 196 OF 2012 ] IV) CIT V. RUNGTA PROPERTIES PRIVATE LIMITED [ITA NO. 105 OF 2016] V) CIT V. ANDAMAN TIMBERS INDUSTRIES LIMITED [ITA NO. 721 OF 2008] VI) CIT V. BHAGWATI PRASAD AGARWAL [2009- TMI-3473 8-ITA NO. 22 OF 2009, ORDER DT. 29.4.09] 3) COMING TO THE CASE OF ITO VS. SHAMIM M. BHARWANI (2016) 69 TAXMANN.COM (MUM ITAT), ORDER DT. 27.03.2015 OF MUMBAI TRIABUNA L, THE BRIEF FACTS IN THIS CASE WAS THAT THE ASSESSEE PURCHASED 2500 SHARES OF EMR ALD COMMERCIAL LTD. (ECL). THE PURCHASE WAS IN CASH. ACCORDING TO THE AO SINCE THE PURCHASE WAS MADE IN CASH, THE SAME WAS NOT VERIFIABLE. FURTHER, THE A.O. FOUND TH AT SAID TRANSACTION WAS NOT THROUGH THE STOCK EXCHANGE. THE SHARES WERE IN A NO NDESCRIPT COMPANY, WITH NO FINANCIAL AND/OR PHYSICAL ASSETS OF VALUE OR REPORT ED EARNINGS. THE SHARES, PURCHASED AT AN AVERAGE RATE OF RS. 21.70 PER SHARE IN MAY 20 04, WENT UP TO AS MUCH AS FROM 8 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. RS. 465 TO RS. 489 IN JULY, 2005, I.E., JUST OVER Y EARS' TIME. EACH OF THESE INCIDENTS MATCHED WITH THAT WHICH COULD BE EXPECTED IN A CASE OF A TRANSACTION IN A PENNY STOCK, THE MODUS OPERANDI OF THE TRANSACTIONS IN WH ICH WAS ALSO LISTED BY THE AO. ACCORDINGLY, RELYING ON THE DECISIONS BY THE APEX C OURT IN THE CASE OF SUMATI DAYAL V. CIT [1995] 214 ITR 801/80 TAXMAN 89 (SC); DURGA PRASAD MORE V. CIT [1971] 182 ITR 540 (SC) AND MC. DOWELL & CO. LTD. V. CTO [ 1985] 154 ITR 148/22 TAXMAN 11 (SC), BESIDES BY THE TRIBUNAL IN THE CASE OF ASSTT. CIT V. SOM NATH MAINI [2006] 7 SOT 202 (CHD.), HE ASSESSED THE IMPU GNED CREDIT OF RS. 12.15 LACS AS UNEXPLAINED INCOME U/S. 68 OF THE ACT. THE TRIBUNAL CONFIRMED THE ADDITION OBSERVING THAT THE PURCHASE OF SHARES WAS OFF MARKE T PURCHASE NOT REPORTED IN THE STOCK EXCHANGE. FURTHER, IT WAS OBSERVED BY THE TRI BUNAL THAT THE PURCHASE WAS THROUGH A BACK DATE CONTRACT NOTE IN CASH AND, THER E WAS NO TRAIL. THUS IT IS NOTED THAT TRIBUNAL IN THIS CASE CONFIRMED THE ADDITION O N A FACTUAL FINDING THAT THE PURCHASE WAS THROUGH A BACK DATED CONTRACT NOTE IN CASH AND, THERE WAS NO TRAIL. THIS FACT IS NOT APPLICABLE IN THE PRESENT CASE. FURTHER, IT IS NOTED THAT THE ABOVEMENTIONED JUDGME NT OF TRIBUNAL, MUMBAI BENCH WAS CONSIDERED/DISTINGUISHED BY THE MUMBAI ITAT IN ITS FOLLOWING JUDGMENTS WHILE ALLOWING SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE: A. DCIT VS. ANIL KAINYA [ ITA NOS.4077 & 4078/MUM/2 013, ORDER DT. 22.03.16 MUM ITAT)] B. ANJALI PANDIT VS. ACIT [2017] 88 TAXMANN.COM 657 (MUMBAI - TRIB.) FURTHER, IT IS NOTED THAT LTHE SAID JUDGMENT HAS BE EN CONSIDERED/DISTINGUISHED BY THE KOLKATA AND OTHER BENCHES OF THE TRIBUNAL, INTER-AL IA, IN THE FOLLOWING CASES WHILE ALLOWING SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE. A. KAUSHALYA AGARWAL VS. ITO [ITA NO.194/KOL/2018, ORDER DT. 03.06.2019 (KOL ITAT)] B. ANUPAMA GARG VS. ITO [ITA NO.5971/0EL/2018, ORDE R DT. 12.12.2018 (DEL, ITAT)] C. RADHIKA GARG. VS. ITO [ITA NO.4738/0EL/2018, ORD ER DT. 01.01.2019 (DEL-TRIB) 9 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. 4. COMING TO THE CASE OF VIDYA REDDY - ITA NO.126/CHNY /2017 - CHENNAI ITAT HAD DISALLOWED THE CLAIM OF EXEMPT LTCG AND HAD CON FIRMED THE ADDITION MADE ON THE GROUND THAT THE ASSESSEE HAS NOT PLACED ANY MAT ERIAL BEFORE THE LOWER AUTHORITIES TO PROVE THAT HER TRANSACTIONS ARE GENUINE. THE TR IBUNAL OBSERVED SHE HAS ALSO NOT PLACED ANY MATERIAL TO PROVE THAT HER CLAIM OF EXEM PTION U/S. 10(38) IS GENUINE AND VALID. HOWEVER, IN THE CASE OF THE ASSESSEE COMPAN Y ALL RELEVANT DOCUMENTS WERE FURNISHED TO SUPPORT PURCHASES AS WELL AS SALE OF S HARES. FURTHER, THE CHENNAI TRIBUNAL HAD RELIED UPON AND FOLLOWED THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN SANJAY BIMALCHAND JAIN VS. PCIT, ORDER DATED 10. 04.2017, WHICH JUDGMENT HAS BEEN CONSIDERED AND DISTINGUISHED BY KOLKATA AND OT HER BENCHES OF THE TRIBUNAL, INTER-ALIA, IN THE FOLLOWING CASES: A. SATYANARAYAN SARIA VS. ITO [ITA NO.1224/KOL/2016 , ORDER DT. 28.06.2019 (KOL ITAT)] B. KAUSHALYA AGARWAL VS. ITO [ITA NO.194/KOL/2018, ORDER DT. 03.06.2019 (KOL, ITAT)] C. MEENU GOEL VS. ITO [2018] 94 TAXMANN.COM 158 (DE L-TRIB) REFERENCE IS ALSO MADE TO THE RECENT JUDGMENT DATED 1ST JULY, 2019 RENDERED BY THE TRIBUNAL IN THE CASE OF APARNA MISRA VS. ITO [ITA N O.161/KOIL2019] WHEREIN THE TRIBUNAL HAD RELIED UPON THE JURISDICTIONAL CALCUTT A HIGH COURT JUDGMENTS, AS MENTIONED HEREINABOVE. 5. M. K. RAJESHWARI VS. ITO [2018] 99 TAXMANN.COM 339 THE BANGALORE TRIBUNAL NOTED THE ACTS IN THIS CASE AS THE ASSESSE E EARNED LONG-TERM CAPITAL GAIN ON SALE OF SHARES OF MARL AND CLAIMED EXEMPTION ON IT UNDER SECTION 10(38). THE ASSESSING OFFICER RELYING UPON THE REPORT OF THE IN VESTIGATION WING, SEBI REPORT AND FINDINGS/OBSERVATIONS OF THE SIT, CONCLUDED THAT EX EMPTION UNDER SECTION 10(38) CLAIMED BY THE ASSESSEE WAS NOT ACCEPTABLE AND THE ACT OF THE ASSESSEE IN PURCHASING THE PENNY STOCK SHARES AND SALE OF FEE WITHIN THE A MBIT OF ADVENTURE IN THE NATURE OF TRADE. CONSEQUENTLY, AMOUNT IN QUESTION WAS LIABLE TO BE TAXED UNDER THE HEAD 'BUSINESS INCOME'. THE TRIBUNAL CONFIRMED THE ADDIT ION BY OBSERVING THAT THE DEPARTMENT HAD BROUGHT SUFFICIENT MATERIAL ON RECOR D TO DEMONSTRATE THAT 10 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. UNACCOUNTED MONEY WAS INTRODUCED IN THE BOOKS OF AC COUNT THROUGH LONG-TERM CAPITAL GAIN BY ADOPTING SUCH METHOD. IT IS NOTED THAT IN THE AFORESAID CASE, THE TRIBUNA L CONFIRMED THE ADDITION ON A FACTUA1 FINDING THAT THE DEPARTMENT HAD BROUGHT SUFFICIENT MATERIAL ON RECORD TO DEMONSTRATE THAT UNACCOUNTED MONEY WAS INTRODUCED IN THE BOOKS OF ACCOUNT THROUGH LONG-TERM CAPITAL GAIN BY ADOPTING SUCH METHOD. THIS FACT IS NOT APPLICABLE IN THE PRESENT CASE. FURTHER, THE ABOVEMENTIONED JUDGMENT HAS BEEN CONSI DERED/DISTINGUISHED BY THIS TRIBUNAL, INTER-ALIA, IN THE FOLLOWING CASES WHILE ALLOWING SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE: A. KAUSHALYA AGARWAL VS. ITO [ITA NO.194/KOL/2018, ORDER DT. 03.06.2019 (KOI ITAT)] B. YOGESH DALMIA VS. ACIT [ITA NO.113/KOL/2018, ORD ER DT. 03.06.2019 (KOI ITAT)] C. NAVIN KUMAR KAJARIA VS. ACIT [ITA NO.1254-55/KOL /2018, ORDER DT. 03.04.2019 (KOL- TRIB) D. SOUMITRA CHOUDHURY VS. ACIT [ITA NO.256/KOL/2019 , ORDER DT. 15.03.2019 (KOL ITAT)] 6. COMING TO THE CASE OF ABHIMANYU SOIN [2018-TIOL-733 -ITAT-CHD THE CHANDIGARH BENCH OF TRIBUNAL HAD CONFIRMED THE ADDI TION MADE BY AO AFTER OBSERVING THAT '11. THE ASSESSEE HAS FAILED TO PROVE THAT THE PURC HASE AND SALE TRANSACTIONS ARE GENUINE AND COULD NOT EVEN FURNISH AND IOTA OF EVID ENCE REGARDING THE SALE OF SHARES .............. HOWEVER, IN THE CASE OF THE ASSESSE E COMPANY ALL RELEVANT DOCUMENTS WERE FURNISHED TO SUPPORT, AND PROVE BEYOND ALL DOU BTS, PURCHASES AND AS WELL AS SALE OF SHARES, WHICH WAS EVIDENTLY ABSENT IN THAT CASE, SO IS NOT APPLICABLE TO CASE IN HAND. 7. COMING TO THE CASE OF BALBIR CHAND MAINI VS. CIT (2011) 12 TAXMANN.COM 276 (P&H) THE HONBLE PUNJAB & HARYANA HIGH COURT HAD CONFIRMED T HE ADDITION MADE BY ASSESSING OFFICER ON THE BASIS OF FINDING O F FACT BY THE TRIBUNAL: 11 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. 10. THE TRIBUNAL WHILE ADJUDICATING THE ISSUE AGAI NST THE ASSESSEE HAD RECORDED A FINDING OF FACT THAT THE TRANSACTION OF SALE AND PU RCHASE OF SHARES OF M/S. ANKUR INTERNATIONAL LTD., WAS NOT A GENUINE TRANSACTION, A PART WHERE OF RELEVANT TO THE PRESENT ISSUE, MENTIONED IN PARA NOS. 27 AND 28 OF THE ORDER, READS AS UNDER .... HOWEVER, IN THE CASE OF THE ASSESSEE COMPANY ALL RE LEVANT DOCUMENTS WERE FURNISHED TO SUPPORT, AND PROVE BEYOND ALL DOUBTS, PURCHASES AND AS WELL AS SALE OF SHARES. FURTHER THIS JUDGMENT HAS BEEN CONSIDERED AND DISTI NGUISHED BY THIS TRIBUNAL AND OTHER BENCHES OF THE TRIBUNAL, INTER-ALIA, IN THE F OLLOWING CASES WHILE ALLOWING SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE: A. KAUSHALYA AGARWAL VS. ITO [ITA NO.194/KOL/2018, ORDER DT. 03.06.2019 (KOL ITAT)] B. KAMAL SINGH KUNDALIA VS. ITO [ITA NO.2359/KOL/20 17, ORDER DT. 08.05.2019 (KOL ITAT)] C. MEENU GOEL VS. ITO [2018] 94 TAXMANN.COM 158 (DE L-TRIB) 8. COMING TO THE CASE OF CHANDAN GUPTA VS. CIT (2015) 54 TAXMANN.COM 10 (P&H ) THE HON'BLE PUNJAB & HARYANA HIGH COURT HAD CON FIRMED THE ADDITION MADE BY ASSESSING OFFICER ON THE BASIS OF FINDING O F FACT BY THE TRIBUNAL THAT THE ASSESSEE HAD FAILED TO PROVE THE GENUINENESS OF THE TRANSACTION OF SALE AND PURCHASE OF SHARES. THE RELEVANT OBSERVATION IS AS UNDER: ' ..... ON APPRECIATION OF THE EVIDENCE, THE TRIBUNAL HELD THAT THE ASSESSEE HAD FAILED TO PROVE THE GENUINENESS OF THE TRANSACTION OF SALE AN D PURCHASE OF SHARES. ONCE THE TRANSACTION OF PURCHASE AND SALE WAS FOUND TO BE BO GUS THEN THE SALE PROCEEDS HAD TO BE ADDED AS INCOME OF THE ASSESSEE UNDER SECTION 68 OF THE ACT BECAUSE THE MONEY RECEIVED ON THE BASIS OF BOGUS TRANSACTION HAD BEEN CREDITED BY THE ASSESSEE IN THE BOOKS OF ACCOUNT WHICH REMAINED UNEXPLAINED. 9. IN VIEW OF THE FINDINGS OF FACT RECORDED BY THE AUTHORITIES BELOW WHICH COULD NOT BE DEMONSTRATED TO BE ERRONEOUS OR PERVERSE IN ANY MAN NER, NO INTERFERENCE IS CALLED FOR. ' HOWEVER, IN THE INSTANT CASE OF THE ASSESSEE COMPAN Y ALL RELEVANT DOCUMENTS WERE FURNISHED TO SUPPORT AND PROVE BEYOND ALL DOUBTS, P URCHASES AS WELL AS SALE OF SHARES. FURTHER THIS JUDGMENT HAS BEEN CONSIDERED AND DISTI NGUISHED BY THIS TRIBUNAL AND OTHER BENCHES OF THE TRIBUNAL, INTER-ALIA, IN THE F OLLOWING CASES WHILE ALLOWING SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE: 12 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. A. KAUSHALYA AGARWAL VS. ITO [ITA NO.194/KOL/2018, ORDER DT. 03.06.2019 (KOL, ITAT)] B. KAMAL SINGH KUNDALIA VS. ITO [ITA NO.2359/KOL/20 17, ORDER DT. 08.05.2019 (KOL ITAT)] C. MEENU GOEL VS. ITO [2018] 94 TAXMANN.COM 158 (DE L-TRIB) 9. COMING TO THE CASE OF CIT VS. SUNITA DHADDA (HONBL E SUPREME COURT JUDGMENT DATED 06.06.2018), IT IS NOTED THAT THIS JUDGMENT RELIED UPON BY THE DEPARTMENT HAS NO APPLICATION IN THE FACTS OF THE I NSTANT CASE. THE CONTENTION OF LD. DR THAT MATTER SHOULD BE SET ASIDE TO AO FOR SUPPLY ING THE ASSESSEE WITH INVESTIGATION WING REPORT AND STATEMENTS OF PARTIES RELIED UPON CANNOT BE APPLIED IN EACH AND EVERY CASE. THE ASSESSEE COMPANY HAD IN T HE CASE IN HAND DISCHARGED THE ONUS CASTED UPON IT TO PROVE THE CLAIM OF LTCG/STCL , THEN IT WAS THE BOUNDEN DUTY OF THE AO TO BRING OUT THE FALSITY/FABRICATION/WRON G DOING IF ANY ON THE PART OF ASSESSEE OR CONFRONT THE ASSESSEE WITH ANY MATERIAL WHICH IS ADVERSE AGAINST THE ASSESSEE AND TO PROCEED IN ACCORDANCE TO LAW I.E. I N CONFRONTING WITH PRINCIPLE OF NATURAL JUSTICE WITHOUT DOING SO, AND WHEN ASSESSEE PLACED ALL DOCUMENTARY EVIDENCES BEFORE THE AO/LD. CIT(A), THE ASSESSEE CA NNOT BE AGAIN SENT BACK BEFORE AO AND THE DECISION TO SEND BACK TO AO IS DECIDED W HEN PROPER OPPORTUNITY HAS NOT BEEN GIVEN BY AO DURING ASSESSMENT STAGE AND THAT I S NOT THE CASE HERE IN THE CASE IN HAND. 10. COMING TO THE FOLLOWING CASES. I NOTE THAT IN THESE CASES GIVEN BELOW MAHENDRA KUMAR BHANDARI VS. ITO [ORDER DT. 06.04.20 18] ARAVIND KUMAR, CHENNAI VS. ITO [ORDER DT. 08.11.201 8] VIKRAM DUGHAR, CHENNAI VS. ITO [ORDER DT. 13.11.201 8] SADHANA, BANGALORE VS. ITO [ORDER DT. 26.05.2017] ARUN KUMAR BHAIYA, NEW DELHI VS. ITO [ORDER DT. 30. 08.2018] NATTI SINGH HUF, JAIPUR VS. ACIT [ORDER DT. 31.10.2 018] VINOD J. SHARMA, THANE [ORDER DT. 28.10.2015] ALL THE MATTERS WERE SET ASIDE TO THE FILE OF THE A O FOR FRESH CONSIDERATION AND/OR TO CONFRONT THE ASSESSEE WITH THE ADVERSE MATERIALS US ED AGAINST HIM. THE MATTERS IN 13 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. EACH OF THE SAID CASES WERE SET ASIDE IN THE SPECIF IC FACTS AND CIRCUMSTANCES OF EACH OF THE CASES WERE SET ASIDE IN THE SPECIFIC FACTS AND CIRCUMSTANCES OF EACH OF THE CASES WHEREIN ALL FACTS WERE NOT AVAILABLE ON RECOR D AND/OR WHERE IN THE WORDS OF THE D/R THE AO HAS BOTCHED UP ENQUIRY. HOWEVER, IN THE CASE IN HAND THERE IS NO OCCASION FOR SETTING ASIDE THE MATTER IN AS MUCH AS THE ASSESSEE HAD FURNISHED ALL RELEVANT DOC UMENTS, MATERIALS AND/OR EVIDENCE TO SUPPORT ITS TRANSACTIONS OF PURCHASE AND AS WELL AS SALE OF SHARES AND THE AO HAD FAILED TO POINT OUT ANY DEFECT AND/OR LACUNA IN THE SAID DOCUMENTS, MATERIALS AND/OR EVIDENCE. FURTHER, THIS TRIBUNAL IN ITS ORDERS HAD DECIDED SI MILAR ISSUE IN FAVOUR OF THE ASSESSEE BY RELYING ON BINDING JUDICIAL PRONOUNCEMENTS. REF ERENCE IS ALSO MADE TO THE RECENT JUDGMENT DATED 1 ST JULY, 2019 RENDERED BY THE TRIBUNAL IN THE CASE OF APARNA MIWSRA, SUPRA WHEREIN THE TRIBUNAL HAD RELIED UPON THE FOLL OWING JURISDICTIONAL CALCUTTA HIGH COURT JUDGMENTS TO DECIDE SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE. I) M/S CLASSIC GROWERS LTD. VS. CIT [ITA NO. 129 OF 2012] II)CIT VS. LAKSHMANGARH ESTATE & TRADING CO. LIMITE D [2013] 40 TAXMANN.COM 439 (CAL) III) CIT V. SHREYASHI GANGULI [ITA NO. 196 OF 2012] IV) CIT V. RUNGTA PROPERTIES PRIVATE LIMITED [ITA N O. 105 OF 2016] V) CIT V. ANDAMAN TIMBERS INDUSTRIES LIMITED [ITA N O. 721 OF 2008] VI) CIT V. BHAGWATI PRASAD AGARWAL [2009- TMI-34738 -ITA NO. 22 OF 2009, ORDER DT. 29.4.09] 11. COMING TO THE CASES GIVEN BELOW PREM JAIN VS. ITO [ITAT, DELHI, ORDER DT. 22.03.201 8] SANJAY BIMALCHAND JAIN VS. PCIT [2018] 89 TAXMANN.C OM 196 (BOM) THE DECISIONS OF THESE CASES HAD BEEN RELIED UPON B Y D/R TO CONTEND THAT GAINS FROM SALE OF SHARES SHOULD BE ASSESSED AS 'BUSINESS INCO ME' AND NOT UNDER THE HEAD 'CAPITAL GAINS'. IT IS NOTED THAT THE LEARNED D/R I S TRYING TO PUT FORWARD A COMPLETELY NEW ARGUMENT WHICH DO NOT EMANATE OUT OF THE ORDERS OF THE LOWER AUTHORITIES AND ALSO FROM THE RECORDS OF THE CASE A ND THUS IS NOT PERMISSIBLE TO BE RAISED AS THIS STAGE. 14 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. EVEN OTHERWISE, THE ITAT, DELHI BENCH IN PREM JAIN (SUPRA) HAD HELD WHEN THE FACTS OF THE CASE WAS THAT THE ASSESSEE HAD CLAIMED THE I NCOME FROM SALE OF SHARES TO BE ASSESSED AT BUSINESS PROFITS AND NOT CAPITAL GAINS WHERE THERE WAS SHORT DURATION OF HOLDING OF SHARES AND LACK OF CLARITY IN ACCOUNT BO OKS, SALE AND PURCHASE OF SHARES. IN SUCH FACTS OF THE CASE, IT WAS HELD THAT PROFITS FR OM SALE OF SHARES WOULD AMOUNT TO BUSINESS INCOME AND NOT SHORT TERM CAPITAL GAIN. HO WEVER, NO SUCH CASE HAD BEEN MADE OUT BY THE ASSESSING OFFICER IN THE INSTANT CA SES. THE AFORESAID ORDER HAS BEEN CONSIDERED BY THIS TRI BUNAL WHILE DECIDING SIMILAR ISSUE IN FAVOUR OF AN ASSESSEE IN THE CASE OF KAUSHALYA A GARWAL VS. ITO (ITA NO. 194/KOL/2018, ORDER DATED 03.06.2019 (ITAT, KOL). MORE PARTICULARLY, THE JUDGMENT OF HONBLE BOMBAY H IGH COURT IN SANJAY BIMALCHAND JAIN V. PCIUT, ORDER DATED 10.04.2017 (B OM HC) HAD BEEN CONSIDERED AND DISTINGUISHED BY THIS TRIBUNAL AND OTHER BENCHE S OF THE TRIBUNAL, INTER-ALIA, IN THE FOLLOWING CASES: A. SATYANARAYAN SARIA VS. ITO [ITA NO.1224/KOL/2016 , ORDER DT. 28.06.2019 (KOL ITAT)] B. KAUSHALYA AGARWAL VS. ITO [ITA NO.194/KOL/2018, ORDER DT. 03.06.2019 (KOL, ITAT)] C. MEENU GOEL VS. ITO [2018] 94 TAXMANN.COM 158 (DE L-TRIB) 12. COMING TO THE CASES GIVEN BELOW: ACIT VS. MADHURI SUNIL KOTECHA [ITAT, PUNE, ORDER D T. 28.03.2018] CHARU AGARWAL, MEERUT VS. ITO [ITAT, DELHI, ORDER D T. 10.09.2018] DAYARAM KHANDELWAL VS. PCIT [MP HIGH COURT, ORDER D T. 01.03.2018] SOURABH KHANDELWAL VS. PCIT [MP HIGH COURT, ORDER D T. 01.03.2018] IT IS NOTED THAT IN ALL OF THESE CASES RELATES TO I MPOSITION OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT IN THE FACTS WHERE THE ASSESSE E HAD WITHDRAWN/SURRENDERED HIS/HER CLAIM OF EXEMPT L TCG U/S. 10(38) OF THE AC T AND PAID TAXES ON THE GAINS ARISING FROM SALE OF SHARES. ALL THESE JUDGMENTS AR E IRRELEVANT AND HAS NO APPLICATION TO THE FACTS OF THE INSTANT CASE BEFORE THE TRIBUN AL. 13. COMING TO THE CASE OF SEBI V. RAKHI TRADING P. LTD [CIVIL APPEAL NO.1969 OF 2011, JUDGMENT DATED 8TH FEBRUARY, 2018 (OF THE HON BLE SUPREME COURT ) IT IS NOTED 15 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. THAT THE HON'BLE SUPREME COURT WAS CONCERNED WITH A CASE WHERE SEBI HAD INITIATED ACTIONS AGAINST FEW TRADERS AND BROKERS FOR VIOLATI ON OF REGULATIONS 3(A), (B) AND (C) AND 4 (1), (2)(A) AND (B) OF THE SECURITIES AND EXC HANGE BOARD OF INDIA (PROHIBITION OF FRAUDULENT AND UNFAIR TRADE PRACTICES RELATING T O SECURITIES MARKET) REGULATIONS, 2003 ('THE PFUTP REGULATIONS'). IN THE SAID CASE, T HE HON'BLE APEX COURT UPHELD THE ACTION INITIATED IN THE CASE OF TRADERS AS THE SAID TRADERS HAVE ADMITTED OF BEING INVOLVED IN SYNCHRONIZED TRADE TO MANIPULATE THE PR ICES OF SHARES. THERE IS NO SUCH ADMISSION BY THE ASSESSEE IN THE INSTANT CASE THAT IT HAS INVOLVED IN ANY PRICE MANIPULATION AND/OR ANY DUBIOUS TAX PLANNING. MOREO VER, THE HON'BLE APEX COURT HAD SET ASIDE THE ACTION INITIATED BY SEBI IN THE C ASE OF BROKERS AS THERE WAS NO EVIDENCE ON RECORD TO SHOW INVOLVEMENT OF THE SAID BROKERS. SIMILARLY IN THE INSTANT CASES THE DEPARTMENT HAD FAILED TO BRING ON RECORD ANY EVIDENCE WHATSOEVER TO SHOW THAT THE ASSESSEE WAS INVOLVED IN ANY PRICE MANIPUL ATIONS. THUS THE JUDGMENT OF THE HON'BLE SUPREME COURT IS CLEARLY DISTINGUISHABLE ON FACTS. THE SAID JUDGMENT HAD BEEN HELD TO BE DISTINGUISHABLE BY THE ITAT, KOLKAT A BENCHES IN THE FOLLOWING JUDGMENTS:- I. SUMAN SARAF V. ITO IN ITA NO.1395/KOI/2018, ORDE R DATED 05.10.2018. II. JIGNESH DESAI V. ITO IN ITA NO.1394/KOI/2018, O RDER DATED 05.10.2018. III. RISHAB JAIN V. ITO IN ITA NO.1392/KOI/2018, OR DER DATED 05.10.2018. IV. REKHA DEVI V. ITO IN ITA NO.1269/KOI/2018, ORDE R DATED 05.10.2018. V. SUNITA DEVI V. ITO IN ITA NO. 1268/KO1/2018, ORD ER DATED 05.10.2018. VI. JAGAT LAL JAIN V.ITO IN ITA NO.1226/KOI/2018, O RDER DATED 05.10.2018. VII. SNEHA CHOUDHARY V. ITO IN ITA NO.1218/KOI/2018 , ORDER DATED 05.10.2018. VIII. U.C.CHOUDHARY & ORS (HUF) V. ITO IN ITA NO.12 17/KOI/2018, ORDER DATED 05.10.2018. IX. VIRENDARA BARMECHA V. ITO IN ITA NO.1201/KOI/20 18, ORDER DATED 05.10.2018. X. TARUNA DEVI BARMECHA V. ITO IN ITA NO.1199/KOI/2 018, ORDER DT. 05.10.2018. XI. PREMLATA AGARWAL VS. ITO IN ITA NO.874/KOI/2018 , ORDER DT. 05.10.2018. XII. SUNIL KUMAR LADHA VS. ITO IN ITA NO.851/KOI/20 18, ORDER DT.05.10.2018. XIII. BALRAM GUPTA VS. ITO IN ITA NO.817/KOI/2018, ORDER DT.05.10.2018. XIV. ALKA CHANGOIWALA VS. ITO IN ITA NO.634/KOI/201 8, ORDER DT.05.10.2018. XV. SANTOSH CHORARIA VS. ITO IN ITA NO.521/KOI/2018 , ORDER DT.05.10.2018. XVI. SONAL BAJAJ VS. ITO IN ITA NO.239/KOI/2018, OR DER DT.05.10.2018. XVII. SUDHA KHANDELWAL V. ITO IN ITA NO.86/KOI/2018 , ORDER DT. 05.10.2018. XVIII. BINA AGARWAL VS. ITO IN ITA NO.1403/KOI/2018 , ORDER DT.05.1 0.2018. XIX. HARISH JAIN VS. ITO IN ITA NO. 1404/KO1/2018, ORDER DT.05.10.2018. 16 ITA NO. 1096/KOL/2018 NITIN KUMAR AGARWAL, AY 2013-14. THUS, IT IS NOTED THAT AFORESAID DECISION OF THE HO NBLE SUPREME COURT, HONBLE BOMBAY HIGH COURT AND TRIBUNAL ARE DISTINGUISHABLE AND SO THE RATIO IS NOT APPLICABLE TO THE CASE/CASES IN HAND. FOR THE REASON GIVEN AT PARA 4 TO 6 SUPRA I AM INCLINED TO ALLOW THE GROUNDS RAISED BY THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23RD AUGUST, 2019 SD/- (A. T. VARKEY) JUDICIAL MEMBER DATED: 23RD AUGUST, 2019 JD. (SR. PS) COPY OF THE ORDER FORWARDED TO: 1 APPELLANT SHRI NITIN KUMAR AGARWAL, C/O, SUBASH AG ARWAL & ASSOCIATES, SIDDHA GIBSON, 1, GIBSON LANE, SUITE-213, 2 ND FLOOR, KOLKATA-69. 2 RESPONDENT ITO, WARD-2(4), SILIGURI 3 4 5 CIT(A) , SILIGURI. CIT , SILIGURI DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES