Shri Satyanarayan Saria, Siliguri V. ITO, WD-2(3), KOLKATA, Siliguri

ITA 1224/KOL/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0272 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-06-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 31-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROBIN CHOUDHUR Y
• Keywords: Unexplained cash credit; Business income; Income from undisclosed sources; Share purchase agreement; Principle of natural justice; Opportunity of cross examination; Transactions in derivatives; Question of law; Accommodation entries; Scheme of amalgamation; Onus to prove; TDS; Set aside; Audi alteram partem
• Section: 143(3); 14A; 260A; 133(6); 250; 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENCH KOLKATA BEFORE SHRI S. S. GODARA, JM & SHRI A.L. SAINI, AM ./ITA NO.1224/KOL/2016 ( [ [ / ASSESSMENT YEAR: 2012-13) SHRI SATYANARAYAN SARIA PROP. M/S. SARIA INDUSTRIES, NAYABAZAR, SILIGURI 734005. VS. ITO, WARD-2(3), KOLKATA. ./ ./PAN/GIR NO.: AJUPS9413N (APPELLANT) .. (RESPONDENT) & ./ITA NO.2566/KOL/2017 ( [ [ / ASSESSMENT YEAR: 2014-15) SHRI SATYANARAYAN SARIA PROP. M/S. SARIA INDUSTRIES, NAYABAZAR, SILIGURI 734005. VS. ITO, WARD-2(3), KOLKATA. ./ ./PAN/GIR NO.: AJUPS9413N (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI SOMNATH GHOSH, ADVOCATE RESPONDENT BY : SHRI ROBIN CHOUDHURY, ADDL. CIT, SR. DR / DATE OF HEARING : 21/06/2019 /DATE OF PRONOUNCEMENT : 28/06/2019 / O R D E R PER SHRI S. S. GODARA: THESE TWO ASSESSEES APPEALS FOR ASSESSMENT YEAR 2012-13 & 2014-15 ARE DIRECTED AGAINST COMMISSIONER OF INCOME TAX(A), SILIGURIS SEPARATE ORDERS, DATED 08.04.2016 AND 30.10.2017, PASSED IN CASES NO.10/CIT(A)/SLG/2015-16 & 48/CIT(A)/SLG/2016-17 RESPECTIVELY INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 2 2. A COMBINED PERUSAL OF THESE FILES INDICATES THAT THE ASSESSEES FIRST GRIEVANCE IN FORMER AND SOLE SUBSTANTIVE GROUND IN LATER ASSESSMENT YEAR IS IDENTICAL IN NATURE WHEREIN HE CHALLENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION TREATING LONG-TERM CAPITAL GAINS OF RS.28,65,192/- AND RS.93,86,844/- (ASSESSMENT YEAR WISE) AND BUSINESS LOSS OF RS.3,19,560/- IN SECOND CASE DERIVED FROM SALE OF SHARES RESPECTIVELY TO BE BOGUS AND NON-GENUINE IN NATURE. THE ASSESSING OFFICER AS WELL AS THE CIT(A)S UNANIMOUS VIEW IS THAT THESE SHARE TRANSACTIONS RECEIPTS ARE BOGUS ACCOMMODATION ENTRIES AS PER THE DEPARTMENTS INVESTIGATION WING REPORT. WE THEREFORE TREATING ASSESSEES CASE IN ITA NO.1224/KOL/2016 AS THE LEAD APPEAL CONTAINING THE CIT(A)S FOLLOWING DETAILED DISCUSSION: 3. CHALLENGING THE DECISION OF THE AO, LD. AR HAS FILED A WRITTEN SUBMISSION OF THE ASSESSEE, RELEVANT PORTION OF WHICH IS REPRODUCED BELOW: '' ' THE LD. INCOME TAX OFFICER ADDED LONG TERM CAPITAL GAIN AMOUNTING TO RS.28,65,192.00 U/S 68 OF THE INCOME TAX ACT. ACTUALLY, THERE WAS A SALE OF 8800 SHARES FOR RS.28,61,463.97 AND COST OF THE SAME SHARES WERE RS.1 LAKH; HENCE THERE WAS CAPITAL GAIN OF RS.27,61,463.00 AS PER RETURN FILED. THE LD. INCOME TAX OFFICER ISSUED LETTER U/S 133(6) OF THE INCOME TAX ACT TO MY SHARE BROKER, M/S SAJENDRA MOOKIM; IN RESPONSE TO WHICH M/S SAJENDRA MOOKIM SENT COPY OF CONTRACT NOTES AND MY LEDGER A/C TO THE INCOME TAX OFFICER. THE OFFICER DID NOT FIND ANY IRREGULARITIES IN THE ABOVE SHARE TRANSACTIONS. THE MAIN POINT OF DOUBT BY THE OFFICER WAS THE APPRECIATION IN SHARE VALUE BY MORE THAN 28 TIMES. THE OFFICER HAD STATED THAT SURVEY OPERATION U/S L33A OF THE INCOME TAX ACT, 1961 WAS CONDUCTED IN THE CASE OF M/S. SIKARIA SHARES & STOCK BROKING SERVICES (P) LTD. AND M/S. HIRA COMMODITIES AND DERIVATIVES (P) LTD. AND IT WAS REVEALED THERE THAT SHARES OF M/S. OASIS CINE COMMUNICATION LTD. HAS BEEN USED BY DIFFERENT SHARE BROKERS FOR PROVING BOGUS LONG TERM CAPITAL GAIN ENTRIES. IN THIS CONNECTION, KINDLY NOTE I HAD NO TRANSACTION/DEALINGS WITH THE ABOVE BROKERS. EVEN I HAVE NEVER HEARD THE NAME OF ABOVE BROKERS. MY SHARES WERE SOLD THROUGH M/S. SAJENDRA MOOKIM. IF SOME BROKERS ARE DOING ILLEGAL BOGUS TRANSACTIONS, IT DOES NOT MEAN THAT ALL OTHER BROKERS ARE ALSO DOING IN THE SAME LINE. HOW THE FINDINGS OF SURVEY OPERATION OF FEW BROKERS CAN BE CO-RELATED WITH ALL OTHER BROKERS. THE LD. OFFICER HAD STATED IN HIS ORDER THAT 'THE ASSESSEE WAS REQUIRED TO ANSWER THE FOLLOWING QUESTION WHICH EMERGED DURING THE COURSE OF ASSESSMENT PROCEEDING. (I) HOW HE TRAVELED FROM SIRSA TO KOLKATA TO PURCHASE SHARES WHEN HE IS NOT FIT TO TRAVEL? (II) HOW HE CAME TO KNOW ABOUT THE COMPANY OF GRAVITY BARTER PVT. LTD.? (III)THE DETAILS OF THE BUSINESS OF THE COMPANY? (IV) WHO ARE THE PROMOTERS OF THE COMPANY? (V) THE DETAIL FINANCIAL AFFAIRS OF THE COMPANY. (VI) WHEN HE CAME TO KNOW ABOUT THE MERGER OF THE COMPANY? ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 3 (VII) HOW AND TO WHOM HE HAS DELIVERED THE SHARES OF THE GRAVITY BARTER PVT. LTD. AFTER THE MERGER WHEN HE IS UNFIT TO TRAVEL. (VIII) HOW HE CAME TO KNOW ABOUT THE SHARE BROKER FROM WHOM HE HAS PURCHASED THE SHARES? THERE ARE MANY MORE QUESTIONS WHICH REQUIRE TO BE ANSWERED BY APPEARING PERSONALLY. THEREFORE, THE DISCHARGE OF ONUS WITH RESPECT TO THE BURDEN OF PROOF AND VARIOUS INCONSISTENCIES AND INFIRMITIES IN THE ASSESSEE'S REPLIES DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS.' ALMOST ALL ABOVE POINTS ARE NOT RELEVANT IN SHARE DEALINGS. WHO CONSIDERS THESE MANY THINGS WHILE PURCHASING SHARES? IT IS A FACT THAT COMPLIANCE U/S 131 OF THE INCOME TAX ACT WAS NOT MADE DUE TO SHORTAGE OF TIME. HOWEVER SUMMON U/S 131 WAS NOT ISSUED SECOND TIME. SHARES WERE SOLD AND PAYMENT WAS RECEIVED BY A/C PAYEE CHEQUE. THE BROKER DEPOSITED THE CHEQUE AT KOLKATA INTO MY BANK A/C. BEFORE PASSING THIS ORDER THE LD. OFFICER HAD NO FINDINGS THAT THERE WAS ANYTHING ADVERSE AND/OR WRONG IN THE ABOVE SHARE DEALINGS. THE LD. I.T.O HAD ALSO STATED IN HIS ORDER THAT 'THE ASSESSEE IS RESIDING IN SIRSA AS EVIDENT FROM THE REPLY RECEIVED IN RESPONSE TO NOTICE U/S 131 AND THERE WAS NO OCCASION TO MAKE PURCHASE OR SALE FROM A BROKER IN KOLKATA. THE ASSESSEE IS DEALING IN THE BUSINESS OF MANUFACTURING, PURCHASING AND SELLING RICE. THE ASSESSEE WAS UNABLE TO EXPLAIN THE REASONS FOR MULTIFOLD INCREASE IN THE RATE OF SHARES. IT MAY BE MENTIONED HERE THAT THE SCRIP OF M/S OASIS CINE COMMUNICATION VERY HEAVILY USED FOR GIVING THE BOGUS LONG TERM CAPITAL GAB ENTRIES TO MANY PEOPLE RESIDING ALL OVER THE COUNTRY AND M/S. SAJENDRA MOOKIM ARE HIGHLY TAINTED CONCERNS WHO HAD GIVEN THIS KIND OF ENTRIES TO MANY PEOPLE EARLIER AND STILL HE IS DOING SO.' IN THIS CONNECTION PLEASE NOTE THAT THE SHARES ARE PURCHASED/SOLD OVER TELEPHONE. PURCHASE OF SHARE FROM KOLKATA BROKER SHOULD NOT BE AN ISSUE AND A PERSON DEALING IN RICE MAY ALSO PURCHASE SHARES. THERE IS NO RESTRICTION UNDER ANY ACT THAT A RICE DEALER CAN'T PURCHASE SHARE. IF PRICE OF A SHARE INCREASES HEAVILY, THE ASSESSEE/INVESTOR HAVE NOTHING TO DO WITH IT. THE OFFICER HAD STATED IN HIS ORDER THAT UNACCOUNTED CASH OF THE ASSESSEE WAS CHANNELIZED AS LONG TERM CAPITAL GAINS THROUGH HAWALA OPERATION FROM KOLKATA ROUTE. THE ABOVE ALLEGATIONS MADE BY THE A.O WAS WITHOUT ANY BASIS. THE OFFICER HAD NO SUCH FINDINGS THAT UNACCOUNTED CASH WAS TRANSFERRED TO KOLKATA BROKER. THE SHARES WERE ACTUALLY SOLD ON 12LB/2AN THROUGH BROKER M/S. SAJENDRA MOOKISR, BEARING PA NO. ADMPM0204D, SEBI REGISTRATION NO. INB030967419, VIDE SETTLEMENT NO. CSE/ROLLING/2012526/12/03/2012, SETTLEMENT PERIOD 12/03/2012 TO 12/03/2012, CONTRACT NOTE NO. 0426. STT AMOUNTING TO RS.3,583.00 WAS ALSO CHARGED AGAINST ABOVE SHARE TRANSACTIONS. PLEASE ALSO NOTE THAT AS PER SECTION 68, WHERE ANY SUM IS FOUND CREDITED IN THE BOOK OF AN ASSESSEE, MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THERE OF OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESSING OFFICER, SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. IT IS WELL SETTLED THAT IN ORDER TO DISCHARGE THE ONUS, THE ASSESSEE MUST PROVE THE FOLLOWING (I) THE IDENTITY OF THE CREDITOR, (II) THE CAPACITY OF THE CREDITOR TO ADVANCE MONEY, AND (III) THE GENUINENESS OF THE TRANSACTION. AFTER THE ASSESSEE HAS ADDUCED EVIDENCE TO ESTABLISH PRIMA FACIE THE AFORESAID, THE ONUS SHIFT TO THE DEPARTMENT. IN MY CASE, THE OFFICER HAD MADE ADDITION U/S 68 WITHOUT ANY SPECIFIC FINDINGS. I HAD DISCHARGED MY OBLIGATION BY PROVING ALL ABOVE POINTS. THUS WITH DUE RESPECT I WOULD LIKE TO REQUEST YOUR HONOUR TO DELETE THE ADDITIONS AND GRANT ME RELIEF.' ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 4 3.1 I HAVE DULY CONSIDERED THE SUBMISSION OF THE ASSESSEE AND THE FINDINGS OF THE AO. THE ISSUE INVOLVED AND THE COURSE OF INVESTIGATION OF THE ISSUES AND RESULT THEREOF HAVE BEEN STATED BY THE AO IN MINUTE DETAILS AND THEREFORE NOT DISCUSSED AGAIN TO RELIEF THIS ORDER FROM UNNECESSARY REPETITION. IT EMANATES FROM THE FACTS THAT SITTING IN SIRSA, HARYANA AN AGED AND AILING PERSON, ADMITTEDLY HAVING NO KNOWLEDGE AND EXPERTISE IN SHARE MARKET AND SCRIPTS, SUDDENLY PURCHASED 200 SHARES OF A KOLKATA-BASED PENNY SHARE COMPANY NAMELY GRAVITY BARTER PVT. LTD. FOR A CONSIDERATION OF RS.1,00,000/- ON 15/12/2010 AND SOLD THE CONVERTED SHARES OF OASIS CINE COMMUNICATION LIMITED (OCCL) [AFTER MERGER OF GRAVITY BARTER WITH OCCLI FOR RS.28,65,192/- ON 12/03/2012, AFTER A GAP OF FIFTEEN MONTHS FROM THE DATE OF PURCHASE OF ORIGINAL SHARES. SO FAR AS PURCHASES OF SHARES ARE CONCERNED, THE ASSESSEE MISERABLY FAILED TO ANSWER WHEN AND HOW HE HAD TAKEN THE DELIVERY OF SHARES OF GRAVITY BARTER PVT. LTD. AND FROM WHOM; WHY THOSE SHARES WERE NOT PURCHASED THROUGH HIS DEMAT ACCOUNT AND HOW AND TO WHOM HE HAD DELIVERED THE SHARES AFTER MERGER OF GRAVITY BARTER PVT. LTD WITH OASIS CINE COMMUNICATION LIMITED (OCCL) TO GET FRESH EQUITY SHARES. THOSE SHARES WERE PURPORTEDLY SOLD ON 12/03/2012. THE ASSESSEE FAILED AGAIN TO EXPLAIN TO WHOM THE SHARES WERE SOLD FOR SUCH A HIGH PRICE AND WHY THERE WAS NO ENTRY OF SALE OF SUCH SHARES IN HIS DEMAT ACCOUNT. THESE FACTS, COMBINED WITH THE FINDINGS OF TWO REGULATORY AUTHORIZES [INVESTIGATION DIRECTORATE OF INCOME TAX AND SEBI] THAT (I) THE SCRIPTS OF OCCL HAVE BEEN HEAVILY USED FOR GIVING LTCG HAWALA ENTRIES TO MANY PEOPLE RESIDING ALL OVER THE COUNTRY [FINDINGS OF THE INCOME TAX INVESTIGATION DIRECTORATE AFTER SURVEY ACTION], (II) SHRI SAJENDRA MOOKIM, SHARE-BROKER, THROUGH WHOM ASSESSEE ALLEGEDLY SOLD THE SHARES, IS A HIGHLY TAINTED PERSON AND PENALIZED BY SEBI FOR INDULGING IN CREATION OF ARTIFICIAL MARKET AND PRICE MANIPULATION THROUGH SYNCHRONIZED TRANSACTIONS IN THE SCRIPTS OF OCCL AND FOUR OTHER COMPANIES AND (III) OCCL WAS ALSO PENALIZED BY SEBI FOR THE SAME REASON, ESTABLISHED WITHOUT ANY DOUBT THAT THE ASSESSEE HAD CHANNELIZED HIS OWN UNACCOUNTED MONEY IN THE GUISE OF LTCG IN PENNY SHARES THROUGH HAWALA TRANSACTIONS FROM AN RECOGNIZED KOLKATA-BASED TAINTED COMPANY ,ARRANGED THROUGH AN BLACK-LISTED TAINTED SHARE-BROKER. 3.2. CONTRARY TO THE CLAIM OF THE ASSESSEE, HE HAD NOT CLEARED THE TEST OF PROVISIONS OF SECTION 68 OF THE ACT. HE FAILED TO ANSWER HOW AND WHEN HE HAD TAKEN PHYSICAL DELIVERY OF THE SHARES OF GRAVITY BARTER PVT. LTD. AND TAKEN BACK THOSE SHARES TO KOLKATA AFTER MERGER OF GRAVITY BARTER PVT. LTD. WITH OCCL AS WELL AS HOW AND WHEN HE HAD TAKEN PHYSICAL DELIVERY OF THE SHARES OF OCCL. HE ALSO FAILED TO EXPLAIN WHY THE SALES WERE NOT ENTERED IN HIS DEMAT ACCOUNT AND TO NAME THE PERSON TO WHOM SHARES WERE SOLD AND HAD NOT COMPLIED WITH AO'S SUMMON BY NOT ATTENDING ON PERSONS ON SOME PRETEXT. SO, THE ASSESSEE HAD NOT DISCHARGED THE PRIMARY ONUS OF IDENTIFYING THE CREDITOR. APART FROM THE VERY FACTS THAT THE ASSESSEE HAD PURPORTEDLY MADE A HUGE GAIN OF MORE THAN 28 TIMES WITHIN 15 MONTHS FROM INVESTMENT IN THE SHARES OF A TAINTED COMPANY, DEALT THROUGH A BLACKLISTED SHARE BROKER, THE AO TREATED THE IMPUGNED TRANSACTION AS NON-GENUINE FOR THE FOLLOWING REASONS ALSO - 'I. THE COPY OF DEMAT ACCOUNT SUBMITTED BY THE ASSESSEE DOES NOT REFLECT AND TRANSFER OF SHARE. IT HAS NOT BEEN PROVED THAT THE PURPORTED TRANSACTIONS WERE ROUTED THROUGH STOCK EXCHANGE AND SHARE TRADING WAS DONE EITHER IN PHYSICAL FORMAT OR ON ONLINE MODE. II. THE PERSON WHO IS PURPORTED TO HAVE PURCHASED THESE SHARES FROM THE ASSESSEE HAS NOT BEEN FOUND TO CONFIRM THE TRANSACTION. III. NO REASONABLE EXPLANATION WITH REFERENCE TO THE MANIFOLD INCREASE IN THE PRICE OF THE SHARES, FINANCIAL STRENGTH OF THE INCOME ETC. WAS GIVEN BY THE ASSESSEE. IV. THERE IS NO EXPLANATION WITH REGARD TO THE PERSONS WHO INTRODUCED THESE BROKERS AND SHARES OF THE COMPANY IN QUESTION.' THE ASSESSEE HAS FAILED TO EVEN ATTEND THESE QUERIES IN HIS PRESENT SUBMISSION. WHEREAS, THE AO, PROBING THE SURROUNDING CIRCUMSTANCES HAS ESTABLISHED BEYOND DOUBT THAT 'THE APPARENT WAS NOT REAL'. THE STORY MADE BY THE ASSESSEE THAT HE MADE GAINS OVER 28 TIMES OF ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 5 HIS INVESTMENTS IN THE SCRIPTS OF A PENNY SHARE COMPANY WITHIN A SPAN OF 15 MONTHS IS FANTASTIC TO HEAR BUT DOES NOT ACCORD WITH MARKET INTELLIGENCE AND HUMAN PROBABILITIES. IT WAS INDEED ASSESSEE'S OWN UNACCOUNTED MONEY BROUGHT INTO BUSINESS THROUGH HAWALA TRANSACTIONS FOR THE SOLE PURPOSE OF EVASION OF TAX. THE ADDITION OF RS.28,65,192/- IS THEREFORE, CONFIRMED. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE RIVAL PLEADINGS. THE ASSESSEES DETAILED PAPER BOOK COMPRISING OF RELEVANT SHARE BILLS OF M/S. GRAVITY BARTER PVT. LTD ISSUED BY M/S. SIGNET VINIMAY PRIVATE LIMITED, CORRESPONDING LETTER ISSUED TO THE FORMER AND THE SHARE TRANSFER DEED, LETTER OF M/S GRAVITY BARTER PVT. LTD. ALONG WITH THE SHARE CERTIFICATE, ALLOTMENT ADVICE ISSUED BY OASIS CINE COMMUNICATION LTD., CONTRACT NOTES, COPY OF MARKET VALUE, QUOTATION OF M/S OASIS CINE COMMUNICATION LTD, DEMAT STATEMENT FROM 01.04.2012 TO 31.03.2013, EXPIRES CAPITAL ACCOUNT AS ON 31.03.2012, BANK STATEMENT IN SUPPORT OF THE GENUINENESS OF IMPUGNED SHARE TRANSACTION, THE A.OS SCRUTINY NOTICES, REPLIES THERETO, INCOME-TAX RETURN, COMPUTATION, BALANCE SHEET AND PROFIT & LOSS A/C RESPECTIVELY, STANDS PERUSED. THIS LEAD CASE FILE SUGGESTS THAT THE EARLIER ENTITY M/S. GRAVITY BARTER PVT. LTD. WAS INCORPORATED ON 13.06.2009. THE ASSESSEE PURCHASED 200 SHARES FROM MARKET FOR RS.1,00,000/- FROM M/S SIGNET VINIMAY P. LTD. ON 15.12.2010. RELEVANT ASSESSMENT FRAMED IN THE SAID EARLIER ASSESSMENT U/S 143(3) OF THE ACT ON 26.03.2014, NOWHERE DOUBTED THE CORRESPONDING PURCHASE TRANSACTIONS. ALL THIS FOLLOWED THE M/S GRAVITY BARTER PVT. LTDS AMALGAMATION WITH M/S OASIS CINE COMMUNICATION LTD. (A REGISTERED ENTITY WITH THE CALCUTTA STOCK EXCHANGE) AND WAS RENAMED AS M/S ECOWAVE INFOTECH LTD. WITH EFFECT FROM 25.11.2011. THE ASSESSEE WAS ALLOTTED 8800 SHARES IN THIS NEW ENTITY WITH AVERAGE COST OF RS.11.36/- PER SHARE I.E. (ORIGINAL COST OF RS.1,00,000 8800 SHARE UNITS). THE ASSESSEE THEN SOLD THE SAME @RS.325.59/- PER SHARE FOR RS.28,65,192/- ON 12.03.2013. THIS IS WHAT HAS GIVEN RISE TO THE INSTANT LIS INVOLVING TREATMENT OF THE ABOVE SHARE PROFITS AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. 4. MR. CHOUDHURY VEHEMENTLY CONTENDS DURING THE COURSE OF HEARING THAT THE ASSESSEE HAS NOT PROVED GENUINENESS OF HIS SHARE TRANSACTIONS GOING BY THE CIT(A)S DISCUSSION IN PARA 3.1 EXTRACTED IN PRECEDING PARAGRAPHS. HE QUOTES HONBLE APEX COURTS DECISION IN DURGA PRASAD MORE REPORTED IN 82 ITR 540(SC) AND SUMATI DAYAL VS. CIT [(1995)214 ITR 801] THAT WE OUGHT TO DECIDE INSTANT GENUINENESS ISSUE AFTER APPRECIATING THE ASSESSEES EXPLANATION IN THE LIGHT OF HUMAN PROBABILITIES BY REMOVING ALL BLINKERS. WE FIND NO MERIT IN THE REVENUES INSTANT ARGUMENTS. WE MAKE IT CLEAR THAT ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 6 THE ASSESSEE HAS FILED VOLUMINOUS EVIDENCE IN SUPPORT OF ACQUISITION/SALE OF THE SHARES IN ISSUE. THE MERE EFFECT THAT ASSESSEES LIVES AT FAR AWAY DESTINATION IS NO GROUND TO DISPUTE THE SAME IN VIEW OF THE ABOVE OVERWHELMING DETAILS. THE ASSESSEES BROKERS FOUND ALSO APPEARED BEFORE THE ASSESSING OFFICER TO SUPPORT HIS CASE IN RESPONSE TO SECTION 133(6) NOTICES. 5. COMING TO DEMAT ISSUE (SUPRA), THE ASSESSEES PAPER BOOK PAGES 15 TO 16 CONTAINS THE RELEVANT CONTRACT NOTES REGARDING THE SCRIPS MARKET VALUE STATEMENT PARTICULARS AS WELL AS PURCHASE AND SALES DETAILS. WE FIND THAT THE REVENUE HAS NOT PLACED ON RECORD ANY COGENT EVIDENCE REGARDING THE ACCOMMODATION ENTRY NEXUS BETWEEN ASSESSEE, HIS BROKERAGE FIRM AND THE TWO OTHER FIRMS SUCH NAMELY M/S. SIKARIA SHARES AND STOCK BROKING SERVICES AND M/S HIRA COMMODITIES AND DERIVATIVES PVT. LTD. THERE IS NOT EVEN A SINGLE TRANSACTION BETWEEN THE ASSESSEE AND THE OTHER TWO BROKERAGE FIRMS. THE RELEVANT ASSERTION THAT THE SEBI HAS ALSO PENALIZED THE BROKERAGES FIRMS FOR PRICE, DOES NOT CARRY ANY SUBSTANCE SINCE THE RELEVANT ORDER DATED 12.04.2010 INVOLVES TIMES BETWEEN 17.08.2004 TO 31.03.2005 WHEREAS WE ARE CONCERNED WITH THE ASSESSEES ALLOTMENT OF SHARES MUCH LATER I.E. ON 04.02.2012 (PAGES 65 TO 77). THERE IS FURTHER NO ISSUE ABOUT THE CORRECTNESS OF THE CORRESPONDING AMALGAMATION DETAILS. WE CONCLUDE IN THESE PECULIAR FACTS THAT THE ASSESSEE HAS SUFFICIENTLY DISCHARGED HIS ONUS OF PROVING GENUINENESS OF THE IMPUGNED SHARE TRANSACTIONS IN THE LEAD ASSESSMENT YEARS. 6. COMING TO THE LATER ASSESSMENT YEARS, BOTH THE LOWER AUTHORITIES ALLEGED THAT THE ASSESSEE WAS INVOLVED IN ARTIFICIAL RIGGING OF SHARE PRICES IN COLLUSION WITH ENTRIES. WE REPEAT HEREIN AS WELL AS THAT THERE IS NO SUCH NEXUS PROVED WITH THE HELP OF COGENT DETAILS WHICH COULD BE LEAD US TO THE CONCLUSION OF THE ASSESSEE HAVING DERIVED NON-GENUINE SHARE PROFITS. THIS TRIBUNALS COORDINATE BENCH DECISION IN NAVNEET AGARWAL VS. ITO; ITA NO.2281/KOL/2017 DECIDED ON 20.7.18 HAS ANALYZED THE ENTIRE FACTUAL/LEGAL POSITION TO DECIDE THE VERY ISSUE AGAINST THE REVENUE AS FOLLOWS: 10. AFTER CAREFUL CONSIDERATION OF THE RIVAL SUBMISSIONS, PERUSAL OF THE PAPERS ON RECORD AND ORDER OF THE LOWERS AUTHORITIES BELOW, AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS. 11. THE ASSESSEE IN THIS CASE HAS STATED THE FOLLOWING FACTS AND PRODUCED THE FOLLOWING DOCUMENTS AS EVIDENCES: 1. THE ASSESSEE HAD MADE AN APPLICATION FOR ALLOTMENT OF 50000 EQUITY SHARES OF SMART CHAMPS IT AND INFRA LTD. AND SHE WAS ALLOTTED THE SHARE ON 3 RD DECEMBER 2011 ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 7 (COPY OF APPLICATION FORM, INTIMATION OF ALLOTMENT AND SHARE CERTIFICATE PAPER BOOK AT PAGE 8 TO 10). 2. THE PAYMENT FOR THE ALLOTMENT OF SHARES WAS MADE THROUGH AN ACCOUNT PAYEE CHEQUE (COPY OF THE BANK STATEMENT EVIDENCING THE SOURCE OF MONEY AND PAYMENT MADE TO SMART CHAMPS IT & INFRA LTD. FOR SUCH SHARES ALLOTTED IS PLACED IN THE PAPER BOOK AT PAGE NO. 11). 3. ANNUAL RETURN NO. 20B WAS FILED WITH REGISTRAR OF COMPANIES BY SMART CHAMPS IT & INFRA LTD SHOWING THE ASSESSEES NAME AS SHAREHOLDER (COPY OF ANNUAL RETURN NO. 20B FILED WITH REGISTRAR OF COMPANIES BY SMART CHAMPS IT & INFRA LTD. IS PLACED IN THE PAPER BOOK AT PAGE NO. 12 TO 18.) 4. THE ASSESSEE LODGED THE SAID SHARES WITH THE DEPOSITORY M/S. EUREKA STOCK & SHARE BROKING SERVICES LTD. WITH A DEMAT REQUEST ON 11 TH FEBRUARY, 2012. THE SAID SHARES WERE DEMATERIALIZED ON 31 ST MARCH, 2012 (COPY OF DEMAT REQUEST SLIP ALONG WITH THE TRANSACTION STATEMENT IS PLACED IN THE PAPER BOOK AT PAGE NO. 19 TO 21). 5. ON 24.01.2013, THE HONBLE BOMBAY HIGH COURT APPROVED THE SCHEME OF AMALGAMATION OF SMART CHAMPS IT AND INFRA LTD. WITH CRESSANDA SOLUTIONS LTD. IN ACCORDANCE WITH THE SAID SCHEME OF AMALGAMATION, THE ASSESSEE WAS ALLOTTED 50000 EQUITY SHARES OF M/S. CRESSANDA SOLUTIONS LTD. THE DEMAT SHARES ARE REFLECTED IN THE TRANSACTION STATEMENT OF THE PERIOD FROM 1 ST NOVEMBER 2011 TO 31 ST DECEMBER, 2013 (A COPY OF THE SCHEME OF AMALGAMATION ALONG WITH COPY OF ORDER OF THE HONBLE BOMBAY HIGH COURT AND A COPY OF THE LETTER TO THIS EFFECT SUBMITTED BY CRESSANDA SOLUTIONS LTD. TO BOMBAY STOCK EXCHANGE IS PLACED IN THE PAPER BOOK AT PAGE NO 22 TO 43.) 6. THE ASSESSEE SOLD 50000 SHARES COSTING 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 BROKERS 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 AUTHORITIES. NO EVIDENCE COLLECTED FROM THIRD PARTIES IS CONFRONTED TO THE ASSESSES. NO OPPORTUNITY OF CROSS-EXAMINATION OF PERSONS, ON WHOSE STATEMENTS THE REVENUE RELIES TO MAKE THE ADDITION, IS PROVIDED TO THE ASSESSEE. THE ADDITION IS MADE BASED ON A REPORT FROM THE INVESTIGATION WING. 13. THE ISSUE FOR CONSIDERATION BEFORE US IS WHETHER, IN SUCH CASES, THE LEGAL EVIDENCE PRODUCED BY THE ASSESSEE HAS TO GUIDE OUR DECISION IN THE MATTER OR THE GENERAL OBSERVATIONS BASED ON STATEMENTS, PROBABILITIES, HUMAN BEHAVIOR AND DISCOVERY OF THE MODUS OPERANDI ADOPTED IN EARNING ALLEGED BOGUS LTCG AND STCG, THAT HAVE SURFACED ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 8 DURING INVESTIGATIONS,SHOULD GUIDE THE AUTHORITIES IN ARRIVING AT A CONCLUSION AS TO WHETHER THE CLAIM IN GENUINE OR NOT. AN ALLEGED SCAM MIGHT HAVE TAKEN PLACE ON LTCG ETC. BUT IT HAS TO BE ESTABLISHED IN EACH CASE, BY THE PARTY ALLEGING SO, THAT THIS ASSESSEE IN QUESITONWAS PART OF THIS SCAM. THE CHAIN OF EVENTS AND THE LIVE LINK OF THE ASSESEES ACTION GIVING HER INVOLVEMENT IN THE SCAM SHOULD BE ESTABLISHED. THE ALLEGATION IMPLY THAT CASH WAS PAID BY THE ASSESSEE AND IN RETURN THE ASSESSEE RECEIVED LTCG, WHICH IS INCOME EXEMPT FROM INCOME TAX, BY WAY OF CHEQUE THROUGH BANKING CHANNELS. THIS ALLEGATION THAT CASH HAD CHANGED HANDS, HAS TO BE PROVED WITH EVIDENCE, BY THE REVENUE. EVIDENCE GATHERED BY THE DIRECTOR INVESTIGATIONS OFFICE BY WAY OF STATEMENTS RECORDED ETC. HAS TO ALSO BE BROUGHT ON RECORD IN EACH CASE, WHEN SUCH A STATEMENT, EVIDENCE ETC. IS RELIED UPON BY THE REVENUE TO MAKE ANY ADDITIONS. OPPORTUNITY OF CROSS EXAMINATION HAS TO BE PROVIDED TO THE ASSESEE, IF THE AO RELIES ON ANY STATEMENTS OR THIRD PARTY AS EVIDENCE TO MAKE AN ADDITION. IF ANY MATERIAL OR EVIDENCE IS SOUGHT TO BE RELIED UPON BY THE AO, HE HAS TO CONFRONT THE ASSESSEE WITH SUCH MATERIAL. THE CLAIM OF THE ASSESSEE CANNOT BE REJECTED BASED ON MERE CONJECTURES UNVERIFIED BY EVIDENCE UNDER THE PRETENTIOUS GARB OF PREPONDERANCE OF HUMAN PROBABILITIES AND THEORY OF HUMAN BEHAVIOR BY THE DEPARTMENT. 14. IT IS WELL SETTLED THAT EVIDENCE COLLECTED FROM THIRD PARTIES CANNOTBE USED AGAINST AN ASSESSEE UNLESS THIS EVIDENCE IS PUT BEFORE HIM AND HE IS GIVEN AN OPPORTUNITY TO CONTROVERT THE EVIDENCE. IN THIS CASE, THE AO RELIES ONLY ON A REPORT AS THE BASIS FORTHE ADDITION. THE EVIDENCE BASED ON WHICH THE DDIT REPORT IS PREPARED IS NOT BROUGHT ON RECORD BY THE 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 PARTYTO 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 BENEFITTED, 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 IMPORTLAID 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 SALAV MOHAMED SAIT REPORTED IN (1959) 37 ITR 151 (S C) HAD HELD THAT NO ADDITION CAN BE MADE ON THE BASIS OF SURMISES, SUSPICION AND CONJECTURES. IN THE CASE OF CIT(CENTRAL), KOLKATA VS. DAULAT RAM RAWATMULL REPORTED IN 87 ITR 349, THE HON'BLE SUPREME COURT HELD THAT, THE ONUS TO PROVE THAT THE APPARENT IS NOT THE REAL IS ON THE PARTY WHO CLAIMS IT TO BE SO. THE BURDEN OF PROVING A TRANSACTION TO BE BOGUS HAS TO BE STRICTLY DISCHARGED BY ADDUCING LEGAL EVIDENCES, WHICH WOULD DIRECTLY PROVE THE FACT OF BOGUSNESS OR ESTABLISH CIRCUMSTANCE UNERRINGLY AND REASONABLY RAISING AN INTERFERENCE TO THAT EFFECT. THE HON'BLE SUPREME COURT IN THE CASE OF UMACHARAN SHAH & BROS. VS. CIT 37 ITR 271 HELD THAT SUSPICION HOWEVER STRONG, CANNOT TAKE THE PLACE OF EVIDENCE. IN THIS CONNECTION WE REFER TO THE GENERAL VIEW ON THE TOPIC OF CONVEYANCE OF IMMOVABLE PROPERTIES. THE RATES/SALE PRICE ARE AT VARIANCE WITH THE CIRCLE RATES FIXED BY THE REGISTRATION AUTHORITIES OF THE GOVERNMENT IN MOST CASES AND THE GENERAL IMPRESSION IS THAT CASH WOULD HAVE CHANGED HANDS. THE COURTS HAVE LAID DOWN THAT JUDICIAL NOTICE OF SUCH NOTORIOUS FACTS CANNOT BE TAKEN BASED ON GENERALISATIONS. COURTS OF LAW ARE BOUND TO GO BY EVIDENCE. 16. WE FIND THAT THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A) HAS BEEN GUIDED BY THE REPORT OF THE INVESTIGATION WING PREPARED WITH RESPECT TO BOGUS CAPITAL GAINS TRANSACTIONS. HOWEVER, WE DO NOT FIND THAT THE ASSESSING OFFICER AS WELL AS THE LD. CIT(A), HAVE BROUGHT OUT ANY PART OF THE INVESTIGATION WING REPORT IN WHICH THE ASSESSEE HAS BEEN INVESTIGATED AND /OR FOUND TO BE A PART OF ANY ARRANGEMENT FOR THE PURPOSE OF GENERATING BOGUS LONG TERM CAPITAL GAINS. NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW THAT THE PERSONS INVESTIGATED, INCLUDING ENTRY OPERATORS OR STOCK BROKERS, HAVE NAMED THAT THE ASSESSEE WAS ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 9 IN COLLUSION WITH THEM. IN ABSENCE OF SUCH FINDING HOW IS IT POSSIBLE TO LINK THEIR WRONG DOINGS WITH THE ASSESSEE. IN FACT, THE INVESTIGATION WING IS A SEPARATE DEPARTMENT WHICH HAS NOT BEEN ASSIGNED ASSESSMENT WORK AND HAS BEEN DELEGATED THE WORK OF ONLY MAKING INVESTIGATION. THE ACT HAS VESTED WIDEST POWERS ON THIS WING. IT IS THE DUTY OF THE INVESTIGATION WING TO CONDUCT PROPER AND DETAILED INQUIRY IN ANY MATTER WHERE THERE IS ALLEGATION OF TAX EVASION AND AFTER MAKING PROPER INQUIRY AND COLLECTING PROPER EVIDENCES THE MATTER SHOULD BE SENT TO THE ASSESSMENT WING TO ASSESS THE INCOME AS PER LAW. WE FIND NO SUCH ACTION EXECUTED BY INVESTIGATION 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 HONBLE SUPREME COURT WAY BACK IN THE CASE OF LALCHAND 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 HONBLE COURT HELD: ADVERTING TO THE VARIOUS PROBABILITIES WHICH WEIGHED WITH THE INCOME-TAX OFFICER WE MAY OBSERVE THAT THE NOTORIETY FOR SMUGGLING FOOD GRAINS AND OTHER COMMODITIES TO BENGAL BY COUNTRY BOATS ACQUIRED BY SAHIBGUNJ AND THE NOTORIETY ACHIEVED BY DHULIAN AS A GREAT RECEIVING CENTRE FOR SUCH COMMODITIES WERE MERELY A BACKGROUND OF SUSPICION AND THE APPELLANT COULD NOT BE TARRED WITH THE SAME BRUSH AS EVERY ARHATDAR AND GRAIN MERCHANT WHO MIGHT HAVE BEEN INDULGING IN SMUGGLING OPERATIONS, WITHOUT AN IOTA OF EVIDENCE IN THAT BEHALF. THE CANCELLATION OF THE FOOD GRAIN LICENCE AT NAWGACHIA AND THE PROSECUTION OF THE APPELLANT UNDER THE DEFENCE OF INDIA RULES WAS ALSO OF NO CONSEQUENCE INASMUCH AS THE APPELLANT WAS ACQUITTED OF THE OFFENCE WITH WHICH IT HAD BEEN CHARGED AND ITS LICENCE ALSO WAS RESTORED. THE MERE POSSIBILITY OF THE APPELLANT EARNING CONSIDERABLE AMOUNTS IN THE YEAR UNDER CONSIDERATION WAS A PURE CONJECTURE ON THE PART OF THE INCOME-TAX OFFICER AND THE FACT THAT THE APPELLANT INDULGED IN SPECULATION (IN KALAI ACCOUNT) COULD NOT LEGITIMATELY LEAD TO THE INFERENCE THAT THE PROFIT IN A SINGLE TRANSACTION OR IN A CHAIN OF TRANSACTIONS COULD EXCEED THE AMOUNTS, INVOLVED IN THE HIGH DENOMINATION NOTES,---THIS ALSO WAS A PURE CONJECTURE OR SURMISE ON THE PART OF THE INCOME-TAX OFFICER. AS REGARDS THE DISCLOSED VOLUME OF BUSINESS IN THE YEAR UNDER CONSIDERATION IN THE HEAD OFFICE AND IN BRANCHES THE INCOME-TAX OFFICER INDULGED IN SPECULATION WHEN HE TALKED OF THE POSSIBILITY OF THE APPELLANT EARNING A CONSIDERABLE SUM AS AGAINST WHICH IT SHOWED A NET LOSS OF ABOUT RS. 45,000. THE INCOME-TAX OFFICER INDICATED THE PROBABLE SOURCE OR SOURCES FROM WHICH THE APPELLANT COULD HAVE EARNED A LARGE AMOUNT IN THE SUM OF RS. 2,91,000 BUT THE CONCLUSION WHICH HE ARRIVED AT IN REGARD TO THE APPELLANT HAVING EARNED THIS LARGE AMOUNT DURING THE YEAR AND WHICH ACCORDING TO HIM REPRESENTED THE SECRETED PROFITS OF THE APPELLANT IN ITS BUSINESS WAS THE RESULT OF PURE CONJECTURES AND SURMISES ON HIS PART AND HAD NO FOUNDATION IN FACT AND WAS NOT PROVED AGAINST THE APPELLANT ON THE RECORD OF THE PROCEEDINGS. IF THE CONCLUSION OF THE INCOME-TAX OFFICER WAS THUS EITHER PERVERSE OR VITIATED BY SUSPICIONS, CONJECTURES OR SURMISES, THE FINDING OF THE TRIBUNAL WAS EQUALLY PERVERSE OR VITIATED IF THE TRIBUNAL TOOK COUNT OF ALL THESE PROBABILITIES AND WITHOUT ANY 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. ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 10 THE OBSERVATIONS OF THE HONBLE 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) AYAAUBKHANNOORKHAN PATHAN VS. THE STATE OF MAHARASHTRA AND ORS. 23. A CONSTITUTION BENCH OF THIS COURT IN STATE OF M.P .V. CHINTAMAN SADASHIVA VAISHAMPAYAN AIR 1961 SC1623, HELD THAT THE RULES OF NATURAL JUSTICE, REQUIRE THAT A PARTY MUST BE GIVEN THE OPPORTUNITY TO ADDUCE ALL RELEVANT EVIDENCE UPON WHICH HE RELIES, AND FURTHER THAT, THE EVIDENCE OF THE OPPOSITE PARTY SHOULD BE TAKEN IN HIS PRESENCE, AND THAT HE SHOULD BE GIVEN THE OPPORTUNITY OF CROSS-EXAMINING THE WITNESSES EXAMINED BY THAT PARTY. NOT PROVIDING THE SAID OPPORTUNITY TO CROSS-EXAMINE WITNESSES, WOULD VIOLATE THE PRINCIPLES OF NATURAL JUSTICE. (SEE ALSO: UNION OF INDIA V. T.R. VARMA, AIR 1957 SC 882; MEENGLAS TEAESTATE V. WORKMEN, AIR 1963 SC 1719; M/S. KESORAMCOTTON MILLS LTD. V. GANGADHAR AND ORS. ,AIR 1964 SC708; NEW INDIA ASSURANCE CO. LTD. V. NUSLI NEVILLE WADIA AND ANR. AIR 2008 SC 876; RACHPAL SINGH AND ORS. V. GURMIT SINGH AND ORS. AIR 2009 SC 2448;BIECCO LAWRIE AND ANR. V. STATE OF WEST BENGAL AND ANR. AIR 2010 SC 142; AND STATE OF UTTAR PRADESH V.SAROJ KUMAR SINHA AIR 2010 SC 3131). 24. IN LAKSHMAN EXPORTS LTD. V. COLLECTOR OF CENTRAL EXCISE (2005) 10 SCC 634, THIS COURT, WHILE DEALING WITH A CASE UNDER THE CENTRAL EXCISE ACT, 1944,CONSIDERED A SIMILAR ISSUE I.E. PERMISSION WITH RESPECT TO THE CROSS-EXAMINATION OF A WITNESS. IN THE SAID CASE, THE ASSESSEE HAD SPECIFICALLY ASKED TO BE ALLOWED TO CROSS-EXAMINE THE REPRESENTATIVES OF THE FIRMS CONCERN, TO ESTABLISH THAT THE GOODS IN QUESTION HAD BEEN ACCOUNTED FOR IN THEIR BOOKS OF ACCOUNTS, AND THAT EXCISE DUTY HAD BEEN PAID. THE COURT HELD THAT SUCH A REQUEST COULD NOT BE TURNED DOWN, AS THE DENIAL OF THE RIGHT TO CROSS-EXAMINE, WOULD AMOUNT TO A DENIAL OF THE RIGHT TO BE HEARD I.E. AUDI ALTERAM PARTEM. 28. THE MEANING OF PROVIDING A REASONABLE OPPORTUNITY TO SHOW CAUSE AGAINST AN ACTION PROPOSED TO BE TAKEN BY THE GOVERNMENT, IS THAT THE GOVERNMENT SERVANT IS AFFORDED A REASONABLE OPPORTUNITY TO DEFEND HIMSELF AGAINST THE CHARGES, ON THE BASIS OF WHICH AN INQUIRY IS HELD. THE GOVERNMENT SERVANT SHOULD BE GIVEN AN OPPORTUNITY TO DENY HIS GUILT AND ESTABLISH HIS INNOCENCE. HE CAN DO SO ONLY WHEN HE IS TOLD WHAT THE CHARGES AGAINST HIM ARE. HE CAN THEREFORE, DO SO BY CROSS-EXAMINING THE WITNESSES PRODUCED AGAINST HIM. THE OBJECT OF SUPPLYING STATEMENTS IS THAT, THE GOVERNMENT SERVANT WILL BE ABLE TO REFER TO THE PREVIOUS STATEMENTS OF THE WITNESSES PROPOSED TO BE EXAMINED AGAINST HIM. UNLESS THE SAID 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 ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 11 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 BEEN COMPLIED WITH OR THERE HAS BEEN A GROSS VIOLATION OF THE PRINCIPLES 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 REQUIREMENT OF THE PRINCIPLES OF NATURAL JUSTICE. IN THE ABSENCE OF SUCH AN OPPORTUNITY, IT CANNOT BE HELD THAT THE MATTER HAS BEEN DECIDED IN ACCORDANCE WITH LAW, AS CROSS-EXAMINATION IS AN INTEGRAL PART AND PARCEL OF THE PRINCIPLES OF NATURAL JUSTICE. B) ANDAMAN TIMBER INDUSTRIES VS. COMMISSIONER OF C. EX., KOLKATA-II WHEREIN IT WAS HELD THAT: 4. WE HAVE HEARD MR. KAVIN GULATI, LEARNED SENIOR COUNSEL APPEARING FOR THE ASSESSEE, AND MR. K.RADHAKRISHNAN, LEARNED SENIOR COUNSEL WHO APPEARED FOR THE REVENUE. 5. ACCORDING TO US, NOT ALLOWING THE ASSESSEE TO CROSS-EXAMINE THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENTS OF THOSE WITNESSES WERE MADE THE BASIS OF THE 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. AS FAR AS THE TRIBUNAL IS CONCERNED, WE FIND THAT REJECTION OF THIS PLEA IS TOTALLY UNTENABLE. THE TRIBUNAL HAS SIMPLY STATED THAT CROSS- EXAMINATION OF THE SAID DEALERS COULD NOT HAVE BROUGHT OUT ANY MATERIAL WHICH WOULD NOT BE IN POSSESSION OF THE APPELLANT THEMSELVES TO EXPLAIN AS TO WHY THEIR EX-FACTORY PRICES REMAIN STATIC. IT WAS NOT FOR THE TRIBUNAL TO HAVE GUESS WORK AS TO FOR WHAT PURPOSES THE APPELLANT WANTED TO CROSS-EXAMINE THOSE DEALERS AND WHAT EXTRACTION THE APPELLANT WANTED FROM THEM. 6. AS MENTIONED ABOVE, THE APPELLANT HAD CONTESTED THE TRUTHFULNESS OF THE STATEMENTS OF THESE TWO WITNESSES AND WANTED TO DISCREDIT THEIR TESTIMONY FOR WHICH PURPOSE IT WANTED TO AVAIL THE OPPORTUNITY OF CROSS-EXAMINATION. THAT APART, THE ADJUDICATING AUTHORITY SIMPLY RELIED UPON THE PRICE LIST AS MAINTAINED AT THE DEPOT TO DETERMINE THE PRICE FOR THE PURPOSE OF LEVY OF EXCISE DUTY. WHETHER THE GOODS 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 IN CIVIL 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 AFORESAID TWO WITNESSES WAS THE ONLY BASIS OF ISSUING THE SHOW CAUSE NOTICE. ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 12 19. ON SIMILAR FACTS WHERE THE REVENUE HAS ALLEGED THAT THE ASSESSEE HAS DECLARED BOGUS LTCG, IT WAS HELD AS FOLLOWS: A) THE CALCUTTAHIGH COURT IN THE CASE OF BLB CABLES &CONDUCTORS[ITA NO. 78 OF2017] DATED19.06.2018. THE HIGH COURT HELD VIDE PARA 4.1: WE FIND THAT ALL THE TRANSACTIONS THROUGH THE BROKER WERE DULY RECORDED IN THE BOOKS OF THE ASSESSEE. THE BROKER HAS ALSO DECLARED IN ITS BOOKS OF ACCOUNTS AND OFFERED FOR TAXATION. IN OUR VIEW TO HOLD A TRANSACTION AS BOGUS, THERE HAS TO BE SOME CONCRETE EVIDENCE WHERE THE TRANSACTIONS CANNOT BE PROVED WITH THE SUPPORTIVE EVIDENCE. HERE IN THE CASE THE TRANSACTIONS OF THE COMMODITY EXCHANGED HAVE NOT ONLY BEEN EXPLAINED BUT ALSO SUBSTANTIATED FROM THE CONFIRMATION OF THE PARTY. BOTH THE PARTIES ARE CONFIRMING THE TRANSACTIONS WHICH HAVE BEEN DULY SUPPORTED WITH THE BOOKS OF ACCOUNTS AND BANK TRANSACTIONS. THE LD. AR HAS ALSO SUBMITTED THE BOARD RESOLUTION FOR THE TRADING OF COMMODITY TRANSACTION. THE BROKER WAS EXPELLED FROM THE COMMODITY EXCHANGE CANNOT BE THE CRITERIA TO HOLD THE TRANSACTION AS BOGUS. IN VIEW OF ABOVE, WE REVERSE THE ORDER OF THE LOWER AUTHORITIES AND ALLOW THE COMMON GROUNDS OF ASSESSEES APPEAL. [QUOTED VERBATIM] THIS IS ESSENTIALLY A FINDING OF THE TRIBUNAL ON FACT. NO MATERIAL HAS BEEN SHOWN TO US WHO WOULD NEGATE THE TRIBUNALS FINDING THAT OFF MARKET TRANSACTIONS ARE NOT PROHIBITED. AS REGARDS VERACITY OF THE TRANSACTIONS, THE TRIBUNAL HAS COME TO ITS CONCLUSION ON ANALYSIS OF RELEVANT MATERIALS. THAT BEING THE POSITION, TRIBUNAL HAVING ANALYZED THE SET OF FACTS IN COMING TO ITS FINDING, WE DO NOT THINK THERE IS ANY SCOPE OF INTERFERENCE WITH THE ORDER OF THE TRIBUNAL IN EXERCISE OF OUR JURISDICTION UNDER SECTION 260A OF THE INCOME TAX ACT, 1961. NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL. THE APPEAL AND THE STAY PETITION, ACCORDINGLY, SHALL STAND DISMISSED. B) THE JAIPUR ITAT IN THE CASE OF VIVEK AGARWAL[ITA NO.292/JP/2017]ORDER DATED 06.04.2018 HELD AS UNDER VIDE PAGE 9 PARA 3: WE HOLD THAT THE ADDITION MADE BY THE AO IS MERELY BASED ON SUSPICION AND SURMISES WITHOUT ANY COGENT MATERIAL TO CONTROVERT THE EVIDENCE FILED BY THE ASSESSEE IN SUPPORT OF THE CLAIM. FURTHER, THE AO HAS ALSO FAILED TO ESTABLISH THAT THE ASSESSEE HAS BROUGHT BACK HIS UNACCOUNTED INCOME IN THE SHAPE OF LONG TERM CAPITAL GAIN. HENCE WE DELETE THE ADDITION MADE BY THE AO ON THIS ACCOUNT. C)THE HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF PREMPAL GANDHI[ITA-95-2017(O&M)] DATED18.01.2018 AT VIDE PAGE 3 PARA 4 HELD AS UNDER: .. THE ASSESSING OFFICER IN BOTH THE CASES ADDED THE APPRECIATION TO THE ASSESSEES INCOME ON THE SUSPICION THAT THESE WERE FICTITIOUS TRANSACTIONS AND THAT THE APPRECIATION ACTUALLY REPRESENTED THE ASSESSEES 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 ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 13 BETWEEN THE AMOUNTS SOUGHT TO BE ADDED AND THE ENTRIES IN THOSE DOCUMENTS. THIS WAS ON AN APPRECIATION OF FACTS. THERE IS NOTHING TO INDICATE THAT THE SAME WAS PERVERSE OR IRRATIONAL. ACCORDINGLY, NO QUESTION OF LAW ARISES. D) THE BENCH DOF KOLKATAITAT IN THE CASE OF GAUTAM PINCHA[ITA NO.569/KOL/2017]ORDER DATED 15.11.2017 HELD AS UNDER VIDE PAGE 12 PARA 8.1: IN THE LIGHT OF THE DOCUMENTS STATED I.E. (I TO XIV) IN PARA 6(SUPRA) WE FIND THAT THERE IS ABSOLUTELY NO ADVERSE MATERIAL TO IMPLICATE THE ASSESSEE TO HAVE ENTERED GAMUT OF UNFOUNDED/UNWARRANTED ALLEGATIONS LEVELED BY THE AO AGAINST THE ASSESSEE, WHICH IN OUR CONSIDERED OPINION HAS NO LEGS TO STAND AND THEREFORE HAS TO FALL. WE TAKE NOTE THAT THE LD. DR COULD NOT CONTROVERT THE FACTS SUPPORTED WITH MATERIAL EVIDENCES WHICH ARE ON RECORD AND COULD ONLY RELY ON THE ORDERS OF THE AO/CIT (A). WE NOTE THAT IN THE ABSENCE OF MATERIAL/EVIDENCE THE ALLEGATIONS THAT THE ASSESSEE/BROKERS GOT INVOLVED IN PRICE RIGGING/MANIPULATION OF SHARES MUST THEREFORE ALSO FAIL. AT THE COST OF REPETITION, WE NOTE THAT THE ASSESSEE HAD FURNISHED ALL RELEVANT EVIDENCE IN THE FORM OF BILLS, CONTRACT NOTES, DEMAT STATEMENT AND BANK ACCOUNT TO PROVE THE GENUINENESS OF THE TRANSACTIONS RELEVANT TO THE PURCHASE AND SALE OF SHARES RESULTING IN LONG TERM CAPITAL GAIN. THESE EVIDENCES WERE NEITHER FOUND BY THE AO NOR BY THE LD. CIT (A) TO BE FALSE OR FICTITIOUS OR BOGUS. THE FACTS OF THE CASE AND THE EVIDENCE IN SUPPORT OF THE EVIDENCE CLEARLY SUPPORT THE CLAIM OF THE ASSESSEE THAT THE TRANSACTIONS OF THE ASSESSEE WERE GENUINE AND THE AUTHORITIES BELOW WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE THAT INCOME FROM LTCG IS EXEMPTED U/S 10(38) OF THE ACT. FURTHER IN PAGE 15 PARA 8.5 OF THE JUDGMENT, IT HELD: WE NOTE THAT THE LD. AR CITED PLETHORA OF THE CASE LAWS TO BOLSTER HIS CLAIM WHICH ARE NOT BEING REPEATED AGAIN SINCE IT HAS ALREADY BEEN INCORPORATED IN THE SUBMISSIONS OF THE LD. AR (SUPRA) AND HAVE BEEN DULY CONSIDERED BY US TO ARRIVE AT OUR CONCLUSION. THE LD. DR COULD NOT BRING TO OUR NOTICE ANY CASE LAWS TO SUPPORT THE IMPUGNED DECISION OF THE LD. CIT (A)/AO. IN THE AFORESAID FACTS AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT THE LD. CIT (A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF SALE PROCEEDS OF THE SHARES AS UNDISCLOSED INCOME OF THE ASSESSEE U/S 68 OF THE ACT. WE, THEREFORE, DIRECT THE AO TO DELETE THE ADDITION. E) THE BENCH D OF KOLKATA ITAT IN THE CASE OF KIRAN KOTHARI HUF [ITA NO. 443/KOL/2017] ORDER DATED 15.11.2017 HELD VIDE PARA 9.3 HELD AS UNDER: .. WE FIND THAT THERE IS ABSOLUTELY NO ADVERSE MATERIAL TO IMPLICATE THE ASSESSEE TO THE ENTIRE GAMUT OF UNFOUNDED/UNWARRANTED ALLEGATIONS LEVELED BY THE AO AGAINST THE ASSESSEE, WHICH IN OUR CONSIDERED OPINION HAS NO LEGS TO STAND AND THEREFORE HAS TO FALL. WE TAKE NOTE THAT THE LD. DR COULD NOT CONTROVERT THE FACTS WHICH ARE SUPPORTED WITH MATERIAL EVIDENCES FURNISHED BY THE ASSESSEE WHICH ARE ON RECORD AND COULD ONLY RELY ON THE ORDERS OF THE AO/CIT(A). WE NOTE THAT THE ALLEGATIONS THAT THE ASSESSE/BROKERS GOT INVOLVED IN PRICE RIGGING/MANIPULATION OF SHARES MUST THEREFORE CONSEQUENTLY FAIL. AT THE COST OF REPETITION, WE NOTE THAT THE ASSESSEE HAD FURNISHED ALL RELEVANT EVIDENCE IN THE FORM OF BILLS, CONTRACT NOTES, DEMAT STATEMENT AND BANK ACCOUNT TO PROVE THE GENUINENESS OF THE TRANSACTIONS RELEVANT TO THE PURCHASE AND SALE OF SHARES RESULTING IN LONG TERM CAPITAL GAIN. NEITHER THESE EVIDENCES WERE FOUND BY THE AO NOR BY THE LD. CIT(A) TO BE FALSE OR FICTITIOUS OR BOGUS. THE FACTS OF THE CASE AND THE EVIDENCE IN SUPPORT OF THE EVIDENCE CLEARLY SUPPORT THE CLAIM OF THE ASSESSEE THAT THE TRANSACTIONS OF THE ASSESSEE WERE GENUINE AND THE AUTHORITIES BELOW WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE EXEMPTED U/S 10(38) OF THE ACT ON THE BASIS OF SUSPICION, SURMISES AND CONJECTURES. IT IS TO BE KEPT IN MIND THAT SUSPICION HOW SO EVER STRONG, CANNOT PARTAKE THE CHARACTER OF LEGAL EVIDENCE. IT FURTHER HELD AS FOLLOWS: ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 14 WE NOTE THAT THE LD. AR CITED PLETHORA OF THE CASE LAWS TO BOLSTER HIS CLAIM WHICH ARE NOT BEING REPEATED AGAIN SINCE IT HAS ALREADY BEEN INCORPORATED IN THE SUBMISSIONS OF THE LD. AR (SUPRA) AND HAVE BEEN DULY CONSIDERED TO ARRIVE AT OUR CONCLUSION. THE LD. DR COULD NOT BRING TO OUR NOTICE ANY CASE LAWS TO SUPPORT THE IMPUGNED DECISION OF THE LD. CIT(A)/AO. IN THE AFORESAID FACTS AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF SALE PROCEEDS OF THE SHARES AS UNDISCLOSED INCOME OF THE ASSESSEE U/S 68 OF THE ACT. WE THEREFORE DIRECT THE AO TO DELETE THE ADDITION. F) THE BENCH AOF KOLKATA ITAT IN THE CASE OF SHALEEN KHEMANI[ITA NO.1945/KOL/2014]ORDER 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 LD AO AGAINST THE ASSESSEE, WHICH IN OUR CONSIDERED OPINION, HAS NO LEGS TO STAND IN THE EYES OF LAW. WE FIND THAT THE LD DR COULD NOT CONTROVERT THE ARGUMENTS OFTHE LD AR WITH CONTRARY MATERIAL EVIDENCES ON RECORD AND MERELY RELIED ON THEORDERS OF THE LD AO. WE FIND THAT THE ALLEGATION THAT THE ASSESSEE AND / ORBROKERS GETTING INVOLVED IN PRICE RIGGING OF SOICL SHARES FAILS. IT IS ALSO AMATTER OF RECORD THAT THE ASSESSEE FURNISHED ALL EVIDENCES IN THE FORM OF BILLS,CONTRACT NOTES, DEMAT STATEMENTS AND THE BANK ACCOUNTS TO PROVE THEGENUINENESS OF THE TRANSACTIONS RELATING TO PURCHASE AND SALE OF SHARES RESULTING IN LTCG. THESE EVIDENCES WERE NEITHER FOUND BY THE LD AO TO BE FALSE OR FABRICATED. THE FACTS OF THE CASE AND THE EVIDENCES IN SUPPORT OF THE ASSESSEES CASE CLEARLY SUPPORT THE CLAIM OF THE ASSESSEE THAT THE TRANSACTIONS OF THE ASSESSEE WERE BONAFIDE AND GENUINE AND THEREFORE THE LD AO WAS NOT JUSTIFIED IN REJECTING THE ASSESSEES CLAIM OF EXEMPTION UNDER SECTION 10(38) OFTHE ACT. G) THE BENCH HOF MUMBAIITAT IN THE CASEOF ARVINDKUMAR JAINHUF[ITA NO.4682/MUM/2014]ORDER DATED 18.09.2017 HELD AS UNDER VIDE PAGE 6 PARA 8: WE FOUND THAT AS FAR AS INITIATION OF INVESTIGATION OF BROKER IS CONCERNED, THE ASSESSEE IS NO WAY CONCERNED WITH THE ACTIVITY OF THE BROKER. DETAILED FINDING HAS BEEN RECORDED BY CIT (A) TO THE EFFECT THAT ASSESSEE HAS MADE INVESTMENT IN SHARES WHICH WAS PURCHASED ON THE FLOOR OF STOCK EXCHANGE AND NOT FROM M/S BASANT PERIWAL AND CO. AGAINST PURCHASES PAYMENT HAS BEEN MADE BY ACCOUNT PAYEE CHEQUE, DELIVERY OF SHARES WERE TAKEN, CONTRACT OF SALE WAS ALSO COMPLETE 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 INGENUINE 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 TRANSACTIONS IN M/S RAMKRISHNAFINCAP PVT. LTD. ON THE FLOOR OF THE STOCK EXCHANGE ARE INGENUINE 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 ENTERED BY THE ASSESSEE WAS GENUINE. DETAILED FINDING RECORDED BY CIT (A) AT PARA 3 TO 5 HAS NOT BEEN CONTROVERTED 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). H)THE HONBLE PUNJAB AND HARYANA HIGH COURT INTHE CASE OFVIVEK MEHTA[ITA NO. 894 OF2010] ORDER DATED 14.11.2011 VIDE PAGE 2 PARA 3 HELD AS UNDER: ON THE BASIS OF THE DOCUMENTS PRODUCED BY THE ASSESSEE IN APPEAL, THE COMMISSIONER OF INCOME TAX (APPEAL) RECORDED A FINDING OF FACT THAT THERE WAS A GENUINE TRANSACTION OF PURCHASE OF SHARES BY THE ASSESSEE ON 16.3.2001 AND SALE THEREOF ON 21.3.2002. THE TRANSACTIONS OF SALE AND PURCHASE WERE AS PER THE ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 15 VALUATION PREVALENT 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 HONBLE JURISDICTIONAL CALCUTTA HIGH COURT IN THE CASE OF CIT VS. BHAGWATI PRASAD AGARWAL IN I.T.A. NO. 22/KOL/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 HONBLE 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 HONBLE GUJRAT HIGH COURT AS UNDER: IT CAN THUS BE SEEN THAT THE APPELLATE AUTHORITY AS WELL AS THE TRIBUNAL CAME TO CONCURRENT CONCLUSION THAT THE PURCHASES ALREADY MADE BY THE ASSESSEE FROM RAJ IMPEX WERE DULY SUPPORTED BY BILLS AND PAYMENTS WERE MADE BY ACCOUNT PAYEE CHEQUE. RAJ IMPACTS ALSO CONFIRMED THE TRANSACTIONS. THERE WAS NO EVIDENCE TO SHOW THAT THE AMOUNT WAS RECYCLED BACK TO THE ASSESSEE. PARTICULARLY, WHEN IT WAS FOUND THAT THE ASSESSEE THE TRADER HAD ALSO SHOWN SALES OUT OF PURCHASES MADE FROM RAJ IMPEX WHICH WERE ALSO ACCEPTED BY THE REVENUE, NO QUESTION OF LAW ARISES. 20. APPLYING THE PROPOSITION OF LAW AS LAID DOWN IN THE ABOVE-MENTIONED JUDGMENTS TO THE FACTS OF THIS CASE WE ARE BOUND TO CONSIDER AND RELY ON THE EVIDENCE PRODUCED BY THE ASSESSEE IN SUPPORT OF ITS CLAIM AND BASE OUR DECISION ON SUCH EVIDENCE AND NOT ON SUSPICION OR PREPONDERANCE OF PROBABILITIES. NO MATERIAL WAS BROUGHT ON RECORD BY THE AO TO CONTROVERT THE EVIDENCE FURNISHED BY THE ASSESSEE. UNDER THESE CIRCUMSTANCES, WE ACCEPT THE EVIDENCE FILED BY THE ASSESSEE AND ALLOW THE CLAIM THAT THE INCOME IN QUESTION IS A BONA FIDE LONG TERM CAPITAL GAIN ARISING FROM THE SALE OF SHARES AND HENCE EXEMPT FROM INCOME TAX. 7. THIS TRIBUNALS ANOTHER COORDINATE BENCH DECISION IN MAHAVIR JHANWAR IN I.T.A. NO. 2474/KOL/2018 ORDER DATED FEBRUARY 01, 2019 HAS ALSO REITERATED THE EARLIER VIEW AS UNDER: 2. THE SOLE ISSUE THAT ARISES FOR MY ADJUDICATION IS WHETHER THE ASSESSING OFFICER WAS RIGHT IN REJECTING THE CLAIM OF THE ASSESSEE THAT HE HAD EARNED LONG TERM CAPITAL GAINS ON PURCHASE AND SALE OF THE SHARES OF M/S UNNO INDUSTRIES. THE AO BASED ON A GENERAL REPORT AND MODUS OPERANDI ADOPTED GENERALLY AND ON GENERAL OBSERVATIONS HAS CONCLUDED THAT THE ASSESSEE HAS CLAIMED BOGUS LONG TERM CAPITAL GAIN. HE MADE AN ADDITION OF THE ENTIRE SALE PROCEEDS OF THE SHARES AS INCOME AND REJECTED THE CLAIM OF EXEMPTION MADE U/S 10(38) OF THE ACT. THE EVIDENCE PRODUCED BY THE ASSESSEE IN SUPPORT OF THE GENUINENESS OF THE TRANSACTION WAS REJECTED. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL AND THE LD. CIT(A), KOLKATA, HAD UPHELD THE ADDITION. THE LD. CIT(A) HAS IN HIS ORDER RELIED UPON CIRCUMSTANTIAL EVIDENCE ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 16 AND HUMAN PROBABILITIES TO UPHOLD THE FINDINGS OF THE AO. HE ALSO RELIED ON THE SO CALLED RULES OF SUSPICIOUS TRANSACTION. NO DIRECT MATERIAL WAS FOUND TO CONTROVERT THE EVIDENCE FILED BY THE ASSESSEE, IN SUPPORT OF THE GENUINENESS OF THE TRANSACTIONS. IN OTHER WORDS, THE OVERWHELMING EVIDENCE FILED BY THE ASSESSEE REMAINS UNCHALLENGED AND UNCONTROVERTED. THE ENTIRE CONCLUSIONS DRAWN BY THE REVENUE AUTHORITIES, ARE BASED ON A COMMON REPORT OF THE DIRECTOR OF INVESTIGATION, KOLKATA, WHICH WAS GENERAL IN NATURE AND NOT SPECIFIC TO ANY ASSESSEE. THE ASSESSEE WAS NOT CONFRONTED WITH ANY STATEMENT OR MATERIAL ALLEGED TO BE THE BASIS OF THE REPORT OF THE INVESTIGATION WING OF THE DEPARTMENT AND WHICH WERE THE BASIS ON WHICH CONCLUSION WERE DRAWN AGAINST THE ASSESSEE. COPY OF THE REPORT WAS ALSO NOT GIVEN. 4. THE LD. D/R, SUBMITTED THAT THE TRANSACTION WAS NOT GENUINE. HE ARGUED THAT THE ENTIRE CAPITAL GAIN WAS STAGE MANAGED BY A FEW OPERATORS AND INVESTORS. HE RELIED ON THE ORDER OF LD. ASSESSING OFFICER AND ARGUED THAT THE SAME BE UPHELD. HE RELIED ON THE ORDER OF THE CHENNAI A BENCH OF THE TRIBUNAL IN THE CASE OF M/S. PANKAJ AGARWAL & SONS (HUF) VS. ITO IN ITA NO. 1413 TO 1420/CHNY/2018; ORDER DT. 06/12/2018, FOR THE PROPOSITION THAT SUCH CAPITAL GAINS HAVE TO BE BROUGHT TO TAX. HE ALSO RELIED ON THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SANJAY BIMALCHAND JAIN VS. PRINCIPAL COMMISSIONER OF INCOME-TAX-1, NAGPUR; [2018] 89 TAXMANN.COM 196 (BOMBAY) AND THE DECISION OF THE SMT. M.K. RAJESHWARI VS. ITO; ITA NO.1723/BNG/2018; ASSESSMENT YEAR 2015-16, ORDER DT. 12/10/2018. 5. AFTER HEARING BOTH SIDES, I FIND THAT IN A NUMBER OF CASES THIS BENCH OF THE TRIBUNAL AND JURISDICTIONAL CALCUTTA HIGH COURT HAS CONSISTENTLY HELD THAT, DECISION IN ALL SUCH CASES SHOULD BE BASED ON EVIDENCE AND NOT ON GENERALIZATION, HUMAN PROBABILITIES, SUSPICION, CONJECTURES AND SURMISES. IN ALL CASES ADDITIONS WERE DELETED. SOME OF THE CASES WERE, DETAILED FINDING HAVE BEEN GIVEN ON THIS ISSUE, ARE LISTED BELOW:- SL.NO ITA NOS. NAME OF THE ASSESSEE DATE OF ORDER /JUDGMENT 1. ITA NO.714 TO 718/KOL/2011 ITAT, KOLKATA DICT VS. SUNITA KHEMKA 28.10.2015 2 214 ITR 244 CALCUTTA HIGH COURT CIT VS. CARBO INDUSTRIAL HOLDINGS LTD. - 3. 250 ITR 539 CIT VS. EMERALD COMMERCIAL LTD. 23.03.2001 4. ITA NO.1236 - 1237/KOL/2017 MANISH KUMAR BAID VS. ACIT 18.08.2017 5. ITA NO.569/KOL/2017 GAUTAM PINCHA 15.11.2017 6 ITA NO.443/KOL/2017 KIRAN KOTHARI HUF 15.11.2017 7 ITA NO.2281/KOL/2017 NAVNEET AGARWAL VS. ITO 20.07.2018 8 ITA NO.456 OF 2007 BOMBAY HIGH COURT CIT VS. SHRI MUKESH RATILAL MAROLIA 07.09.2011 9 ITA NO.95 OF 2017 (O&M) PCIT VS. PREM PAL GANDHI 18.01.2018 10 ITA NO.1089/KOL/2018 SANJAY MEHTA 28.09.2018 6. REGARDING THE CASE LAWS RELIED UPON BY THE LD. DEPARTMENTAL REPRESENTATIVE, I FIND THAT, IN THE CASE OF M/S. PANKAJ AGARWAL & SONS (HUF)(SUPRA), THE ISSUE WAS DECIDED AGAINST THE ASSESSEE FOR THE REASON THAT, THE ASSESSEE COULD NOT JUSTIFY HIS CLAIM AS GENUINE BY PRODUCING EVIDENCE AND WAS ONLY ARGUING FOR THE MATTER TO BE SET ASIDE TO THE LOWER AUTHORITIES ON THE GROUND OF NATURAL JUSTICE. AS SIMILAR ARGUMENTS WERE NOT RAISED BEFORE THE LOWER AUTHORITIES BY THE ASSESSEE, THE ITAT REJECTED THESE ARGUMENTS. IN THE CASE ON HAND, ALL EVIDENCES WERE PRODUCED BY THE ASSESSEE. IN THE CASE OF SANJAY BIMALCHAND JAIN, LEGAL HEIR OF SANTI DEVI BIMALCHAND JAIN, THE HONBLE HIGH COURT UPHELD THE STAND OF THE REVENUE THAT THE TRANSACTION IN QUESTION IS AN ADVENTURE IN NATURE OF TRADE AND THE PROFIT OF THE TRANSACTIONS IS ASSESSABLE UNDER THE HEAD OF BUSINESS INCOME. IN THE CASE ON HAND, THE LD. ASSESSING OFFICER HAS NOT ASSESSED THIS AMOUNT AS BUSINESS INCOME. IN ANY EVENT, I ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 17 AM BOUND TO FOLLOW THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THIS MATTER. I FIND THAT THE ASSESSEE HAS FILED ALL NECESSARY EVIDENCES IN SUPPORT OF THE TRANSACTIONS. SOME OF THESE EVIDENCES ARE (A) EVIDENCE OF PURCHASE OF SHARES, (B) EVIDENCE OF PAYMENT FOR PURCHASE OF SHARES MADE BY WAY OF ACCOUNT PAYEE CHEQUE, COPY OF BANK STATEMENTS, (C) COPY OF BALANCE SHEET DISCLOSING INVESTMENTS, (D) COPY OF DEMAT STATEMENT REFLECTING PURCHASE, (E) COPY OF MERGER ORDER PASSED BY THE HIGH COURT , (F) COPY OF ALLOTMENT OF SHARES ON MERGER, (G) EVIDENCE OF SALE OF SHARES THROUGH THE STOCK EXCHANGE, (H) COPY OF DEMAT STATEMENT SHOWING THE SALE OF SHARES, (I) COPY OF BANK STATEMENT REFLECTING SALE RECEIPTS, (J) COPY OF BROKERS LEDGER, (K) COPY OF CONTRACT NOTES ETC. 7. THE PROPOSITION OF LAW LAID DOWN IN THESE CASE LAWS BY THE JURISDICTIONAL HIGH COURT AS WELL AS BY THE ITAT KOLKATA ON THESE ISSUES ARE IN FAVOUR OF THE ASSESSEE. THESE ARE SQUARELY APPLICABLE TO THE FACTS OF THE CASE. THE LD. DEPARTMENTAL REPRESENTATIVE, THOUGH NOT LEAVING HIS GROUND, COULD NOT CONTROVERT THE CLAIM OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ISSUE IN QUESTION IS COVERED BY THE ABOVE CITED DECISIONS OF THE HONBLE JURISDICTIONAL CALCUTTA HIGH COURT AND THE ITAT. I AM BOUND TO FOLLOW THE SAME. 8. IN VIEW OF THE ABOVE DISCUSSION I DELETE THE ADDITION MADE U/S 68 OF THE ACT, ON ACCOUNT OF LONG TERM CAPITAL GAINS. 8. WE ADOPT THE ABOVE DETAILED REASONING MUTATIS MUTANDIS TO DELETE THE IMPUGNED BOGUS LONG-TERM CAPITAL GAIN ADDITION IN BOTH THESE ASSESSEES APPEALS BEFORE US IN VIEW OF THE FOREGOING FACTS AND CIRCUMSTANCES OF THE CASE. 9. THE LEARNED COUNSEL FAIRLY STATES THAT THE ASSESSEE NO MORE WISHES TO CHALLENGE CORRECTNESS OF 14A R.W.R. 8D DISALLOWANCE OF RS. 2,83,258/- FRAMING SUBJECT MATTER OF SECOND SUBSTANTIVE GROUND IN FORMER ASSESSMENT YEAR. THIS GROUND IS THEREFORE TREATED AS DISMISSED SINCE NOT PRESSED. 10. THE ASSESSEES FORMER APPEAL IN ITA NO.1224/KOL/2016 IS PARTLY ALLOWED AND LATER CASE IN ITA NO.2566/KOL/2017 IS ALLOWED IN ABOVE TERMS. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28.06.2019. SD/- (A.L. SAINI) SD/- (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER /KOLKATA; / DATE:28/06/2019 (RS, SR.PS) ITA NO.1224/KOL/2016 & ITA NO.2566/KOL/2017 SHRI SATYANARAYAN SARIA PAGE | 18 / COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. /THE APPELLANT- SHRI SATYANARAYAN SARIA 2. / THE RESPONDENT- ITO, WARD-2(3), KOLKATA. 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. [ / GUARD FILE.