Amit Kumar Garg, Jharkhand V. I.T.O.,Ward24(1), Hooghly

ITA 125/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7935 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-07-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 25-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER JCITSRDR
• Keywords: Business income; Share purchase agreement; Corroborative evidences; Penny stocks; Set aside
• Section: 143(3); 250; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.2196/KOL/2018 ASSESSMENT YEAR:2014-15 KANAK KUMAR MALOO 133, CANNING STREET, KOLKATA-700001 [ PAN NO.ADRPM 0627 R ] / V/S . INCOME TAX OFFICER WARD-35(3), AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-107 /APPELLANT .. /RESPONDENT ITA NO.330/KOL/2019 ASSESSMENT YEAR:2015-16 VIJAY KUMAR BHATTER C/O SUBASH AGARWAL & ASSOCIATES, ADVOCATES SIDDHA GIBSON, 1,GIBSON LANE, SUITE 213, 2 ND FLOOR, KOLKATA-700069 [ PAN NO.ADZPB 4914 A ] / V/S . DCIT, CIRCLE-63 169, AJC BOSE ROAD,BAMBOO VILLA, 9 TH FLOOR, KOLKATA-14 /APPELLANT .. /RESPONDENT ITA NO.326/KOL/2019 ASSESSMENT YEAR:2014-15 DINESH KUMAR BANSAL (HUF) ROOM NO.57, 3 RD FLOOR, 134/1 M.G. ROAD, KOLKATA-700007 [ PAN NO.AABHD 7375 L ] / V/S . INCOME TAX OFFICER WARD-43(2), 3, GOVERNMENT PLACE (WEST), GROUND FLOOR,KOLKATA-001 /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI SUBASH AGARWAL, ADVOCATE /BY REVENUE SHRI SHANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 15-07-2019 ITA NO.2196, 2662, 2559, 2134/K/18, 125, 187, 326, 330, 357 & 363/K/19 PAGE 2 ITA NO.2662/KOL/2018 ASSESSMENT YEAR:2014-15 MRS. MANJU AGARWAL 17, GANESH CHANDRA AVENUE, 4 TH FLOOR, KOLKATA-700013 [ PAN NO.ACTPA 7806 R ] / V/S . INCOME TAX OFFICER WARD-64(3), KOLKATA /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI S.K. TULSIAN, ADVOCATE & SMT. ABHA AGARWAL, FCA /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 15-07-2019 ITA NO.363/KOL/2019 ASSESSMENT YEAR:2015-16 BIJAYA TAH C/O S.N.GHOSH & ASSOCIATES, ADVOCATES SEBEN BROTHERSLODGE, P.O. BUROSHIBTALA, P.S. CHINSURAH, DIST. HOOGHLY,- 712105 [ PAN NO.ADNPT 0603 L ] / V/S . INCOME TAX OFFICER WARD-2(4), AAYAKAR BHAWAN BURDWAN, COURT COMPOUND, P.O.&P.S. BURDWAN, DIST. PURBA BARDDHAMAN,713101 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SOMNATH GHOSH, ADVOCATE /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 15-07-2019 ITA NO.2559/KOL/2018 ASSESSMENT YEAR:2014-15 M/S LAKSHMINARAYAN MAHENDRA KUMAR (HUF) 12A, N.S. ROAD, 1 ST FLOOR, ROOM NO.19, KOLKATA [ PAN NO.AAAHL 4584 L ] / V/S . INCOME TAX OFFICER WARD-35(3), AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, KOLKATA ITA NO.2196, 2662, 2559, 2134/K/18, 125, 187, 326, 330, 357 & 363/K/19 PAGE 3 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI A.K. MAHESHWARI, FCA /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 15-07-2019 ITA NO.357/KOL/2019 ASSESSMENT YEAR:2014-15 PAWAN KUMAR BANSAL 242/1B, A.P.C. BOSE ROAD, 1 ST FLOOR, KOLKATA-700004 [ PAN NO.ADPPB 9401 J ] / V/S . INCOME TAX OFFICER WARD-44(1), 3, GOVERNMENT PLACE, KOLKATA-700001 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI MIRAJ D SHAH, ADVOCATE /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 15-07-2019 ITA NO.125/KOL/2019 ASSESSMENT YEAR:2014-15 AMIT KUMAR GARG 19, TUBE ROSE LANE, ASHIANA GARDENS SONARI, JAMSHEDPUR-831011 [ PAN NO.ADAPG 1596 N ] / V/S . INCOME TAX OFFICER WARD-24(1), AAYAKAR BHAWAN G.T.ROAD, CHINSURAH HOOGHLY- 712101 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI AYUSH GUPTA, FCA /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 15-07-2019 ITA NO.187/KOL/2019 ASSESSMENT YEAR:2014-15 DEEPIKA KEDIA 5, QUEENS PARK, FLAT / V/S . INCOME TAX OFFICER WARD-22(1), 54/1, RAFI ITA NO.2196, 2662, 2559, 2134/K/18, 125, 187, 326, 330, 357 & 363/K/19 PAGE 4 NO.GSW GROUND FLOOR, KOLKATA-700 019 [ PAN NO.AFYPK 3262 P ] AHMED KIDWAI STREET, KOLKATA-700 016 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI G. GHOSH, FCA /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 15-07-2019 ITA NO.2134/KOL/2018 ASSESSMENT YEAR:2014-15 SHASHI AGARWAL 159, RABIDNRA SARANI, KOLKATA-700 007 [ PAN NO.ADAPA 9152 C ] / V/S . INCOME TAX OFFICER WARD-45(2),3, GOVT. PLACE (WEST),KOLKATA-700 001 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI ANJAN KR. BANDHYAPADHYA, ADVOCATE /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 26-06-2019 /DATE OF PRONOUNCEMENT 19-07-2019 /O R D E R THESE ASSESSEES HAVE FILED THEIR INSTANT APPEALS INVOLVING DIFFERENT ASSESSMENT YEAR(S) I.E. 2014-15 AND 2015-16 AGAINST THE RESPEC TIVE COMMISSIONER OF INCOME-TAX (APPEALS) SEPARATE ORDER(S) AFFIRMING THE ASSESSIN G OFFICER(S) IDENTICAL ACTION TREATING VARYING SUMS OF LONG TERM CAPITAL GAINS (L TCG) / LONG/SHORT TERM CAPITAL LOSS (LTCL); AS THE CASE MAY BE AS INVOLVING UNEXPL AINED CASH CREDITS U/S 68, INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. I HAVE HEARD THESE APPEAL(S) TOGETHER OF THE FAC T THAT THE SOLE IDENTICAL ISSUE RAISED IN THE INSTANT ENTIRE BATCH IS THAT OF GENUI NENESS OF ASSESSEES LTCG/LTCL, AS THE CASE MAY BE, DERIVED FROM SALE OF SHARES HELD I N VARIOUS SCRIPS. IT IS IN THIS ITA NO.2196, 2662, 2559, 2134/K/18, 125, 187, 326, 330, 357 & 363/K/19 PAGE 5 IDENTICAL BACKDROP THAT I AM TREATING ITA NO.2662/KOL/2018 IN CASE OF MRS.MANJU AGARWAL VS. ITO WD-61(4), KOLKATA FOR ASSESSMENT YEAR 2014-15 AS THE LEAD CASE. 3. BOTH THE LEARNED REPRESENTATIVE(S) TAKE ME TO CI T(A)S DETAILED DISCUSSION WHILST TREATING THE IMPUGNED STCL PRE-ARRANGED BOGU S LOSS IN THE INSTANT LEAD CASE VIDE THE FOLLOWING LOWER APPELLATE DISCUSSION:- 3. GROUNDS NO. 1 TO 5 OF THE APPEAL ARE DIRECTED A GAINST THE ACTION OF THE A.O. TO DISALLOW APPELLANT'S CLAIM OF LONG TERM CAPITAL GAI N/ SHORT TERM CAPITAL GAIN U/S 10(38) AND HOLD IT AS BOGUS LONG/SHORT TERM CAPITAL GAIN FOR RS.36,48,564/ -. THE A.O. HAS DISCUSSED THE FACTS OF THE CASE OF HIS ASS ESSMENT ORDER. IN NUT SHELL, THE APPELLANT ON 09.90.2011 PRIVATELY PURCHASED 100,000 SHARES @ RS.1/- PER SHARE OF M/S CAREFUL PROJECTS ADVISORY LTD. FROM M/S SANSKRI TI VINCOM PVT. LTD. FOR A TOTAL CONSIDERATION OF RS.1,00,000/-. LATER M/S CARFUL PR OJECTS ADVISORY LTD MERGED WITH KAILASH AUTO FINANCE LTD. SUBSEQUENTLY, ON DIFFERE NT DATES DURING F.Y 2013-14, THE APPELLANT SOLD SHARES @ RS.37.20 PER SHARES FOR CON SIDERATION OF RS.37,48,564/- AND THEREBY HAD A CAPITAL GAIN OF RS.36,48,564/- WHICH HE HAS CLAIMED TO BE TOTALLY EXEMPT UNDER THE PROVISIONS OF SECTION 10(38) OF TH E ACT. THE SALE WAS MADE THROUGH BROKER M/S GUINESS SECURITIES LTD. THE A.O. IN THE MEANWHILE HAD RECEIVED INFORMATION FROM DIT(INV.), KOLKATA THAT: THEY HAVE INVESTIGATED AND IDENTIFIED 84 PENNY STOCK COMPANIES. SEARCH AND SURVEY WERE ALSO CONDUCTED IN THE OFFICE PREMISES OF 32 SHARE BROKERS WHO ACCEPTED THAT THEY WERE INVOLVED IN BOGUS LTCG / STCG SEAM. ONE SUCH PENNY STOCK COMPANY IDENTIFIED BY THE DIT(INV.), KOLKATA IS M/S KAILASH AUTO FINANCE LTD THE A.O. FOUND THAT TH IS SCRIP HAS ALSO BEEN BANNED BY SEBI. BASIC TRADING PATTERN OF ALL THESE 84 PENNY S TOCK SCRIPS REPRESENTED A BELL SHAPED TRADING I.E. PRICES START AT A LOW RANGE AND RISES RAPIDLY, STAYS THERE FOR A WHILE AND THEN DECREASES RAPIDLY. THIS MAKES A BELL SHAPED PATTERN. THE A.O. OF HIS ORDER HAS DEMONSTRATED THIS PHENOMENON OF M/S KAILA SH AUTO FINANCES LTD. AND THE AO FOUND THAT THIS SCRIP HAS ALSO BEEN BANNED BY SE BI. BASIC TRADING PATTERN OF ALL THESE 84 PENNY STOCK SCRIPS REPRESENTED A BELL SHAP ED TRADING I.E. PRICES START AT A LOW RANG AND RISES RAPIDLY, STAYS THERE FOR AWHILE AND THEN DECREASES RAPIDLY. THIS MAKES A BELL SHAPED PATTERN. THE AO OF HIS ORDER HAS DEMO NSTRATED THIS PHENOMENON OF M/S KAILASH AUTO FINANCE LTD., WHICH FOLLOW BELL SHAPED PATTERN. SUCH MOVEMENT OF SHARE IS NOT SUPPORTED Y ACTUAL FINANCIAL CREDENTIALS AS THE COMPANY CONCERNED HAS ALMOST NO FIXED ASSET, NO TURNOVER, NO PROFITABILITY AND DO NOT PAY TAXES. HENCE, COMPANIES WERE DESIGNED ONLY FOR THE LIMITED PURPOSES OF BOGU S LTCG/STCG TO WILLING ANY BENEFICIARY. THE A.O AFTER GIVING DUE OPPORTUNITY T O THE APPELLANT OF BEING HEARD HELD THAT THE INVESTMENT OF THE APPELLANT INCREASES BY A LMOST 37 TIMES WITHIN A SPAN OF 18 MONTHS IS NOTHING BUT BOOKING OF BOGUS LTCG. ACCORD INGLY, THE ENTIRE AMOUNT OF LTCG OF RS.36,48,564/- WAS ADDED BACK AS BOGUS LTCG TO THE INCOME OF THE APPELLANT. DURING THE APPELLATE PROCEEDINGS, THE A/ R OF THE APPELLANT APPEARED ON 05.06.2018 AND FILED A WRITTEN SUBMISSION ALONG WIT H SOME SUPPORTING DOCUMENTS. 3.1 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDE R WHEREIN THE ADDITION OF RS. 36,48,564/- HAS BEEN MADE BY THE A.O. ON ACCOUNT OF BOGUS LONG TERM CAPITAL GAIN. I FIND THAT THE A.O. AT THE TIME OF COMPLETION OF T HE ASSESSMENT PROCEEDINGS HAS FRAMED THE ASSESSMENT AFTER ANALYZING VARIOUS INFOR MATION RECEIVED FROM THE INVESTIGATION WING. SOME OF THE OBSERVATIONS WHICH COME TO LIGHT UPON EXAMINATION OF THE RECORDS OF THE APPELLANT ARE AS BELOW :- ITA NO.2196, 2662, 2559, 2134/K/18, 125, 187, 326, 330, 357 & 363/K/19 PAGE 6 A. THERE IS A COMMON PATTERN IN THE TRADING OF SUCH SCRIPTS AND THE PATTERN IS THAT THEY REPRESENT A BELL SHAPE IN THEIR TRADING. (PAGE NO.8 OF THE ASSESSMENT ORDER) B. FROM BALANCE SHEET OF THE LISTED PENNY STOCKS IT IS FOUND THAT THEY HAVE NO ACTUAL FINANCIAL CREDENTIALS TO SUPPORT THEIR SHARE MOVEMENT PATTERN. ALMOST ALL THE COMPANIES HAVE NO FIXED ASSETS, NO TURNOVER , NO PROFITABILITY,(PAGES NO. 8-10 OF THE ASSESSMENT ORDER). A. NO SUCH EVENT OF GROWTH HAPPENED FOR WHICH INVES TMENT IN SHARES COULD HAVE JUMPED AROUND 37 TIMES IN A VERY SHORT SPAN OF TIME OF 18 MONTHS. B. IN THE WHOLE PROJECT TOTAL 84 LISTED PENNY STOCK COMPANIES WERE IDENTIFIED AND WORKED UPON. AFTER THAT, NUMBER OF SEARCH AND S URVEYS WERE CONDUCTED IN THE OFFICE PREMISES OF MORE THAN 32 SHARE BROKING E NTITIES WHO HAVE ACCEPTED THAT THEY WERE INVOLVED IN THE BOGUS LTCG / STCL SC AM. SURVEYS WERE ALSO CONDUCTED IN THE OFFICE PREMISES OF MANY ACCOMMODAT ION ENTRY PROVIDERS AND THEIR STATEMENTS RECORDED. ALL HAVE ACCEPTED THEIR ROLE IN THE SEAM. C. OUT OF 84 LISTED PENNY STOCKS WHICH HAVE BEEN US ED FOR GENERATING BOGUS LTCG/STCL, M/S KAILASH AUTO FINANCE LTD., WHICH HAD BEEN SOLD BY THE PRESENT ASSESSEE, IS ONE OF THEM. 3.2 A DEEPER EXAMINATION OF THE PAPER BOOK FILED BY THE APPELLANT GIVES A MUCH CLEAR PICTURE OF THE ENTIRE PROCESS BEING STAGED MANAGED. THE MOST VITAL ASPECT TO BE CONSIDERED IS WHAT PROMPTED HIM TO MAKE A DECISION FOR INVESTMENT IN THIS COMPANY. ON PERUSAL OF THE DETAILS OF INVESTMENT MADE BY THE APPELLANT, IT IS EVIDENT THAT THE APPELLANT MOSTLY MADE INVESTMENT IN RENOWNED COMPAN IES. THEREFORE, THE INVESTMENT MADE BY THE APPELLANT IN SUCH A COMPANY WHICH DOES NOT HAVE ANY CREDENTIALS, DOES NOT MATCH WITH THE NATURE OF INVESTMENT OF THE APPE LLANT. IT IS NOTICED THAT APPELLANTS OTHER INVESTMENTS HAVE BEEN MADE THROUGH STOCK EXCH ANGE BUT IN THE CASE OF PURCHASE OF SHARES OF M/S CAREFUL PROJECTS, THE APP ELLANT HAS DEVIATED FROM THE SET PATTERN AND MADE PURCHASE PRIVATELY FROM M/S SANSKR ITI VINCOM PVT. LTD. HOW DID THIS CHANGE IN THE PATTERN OF INVESTMENT BEHAVIOR H APPENED IN CASE OF THE APPELLANT? HOW DID THIS CHANGE IN THE PATTERN OF INVESTMENT BE HAVIOR HAPPENED IN CASE OF THE APPELLANT? DURING APPELLATE PROCEEDINGS THESE QUEST IONS COULD NOT BE ANSWERED BY THE APPELLANT. THE TRUTH IS THAT APPELLANT IN LEAGU E WITH ENTRY OPERATORS WAS INVOLVED IN PROVIDING BOGUS LTCG AND THE APPELLANT HERSELF W AS ONE SUCH BENEFICIARIES. HER NAME FIGURES IN THE LIST OF BENEFICIARIES IDENTIFIE D BY DIT(INV.), KOLKATA. REFERENCE IS ALSO BEING MADE AT PAGES NO. 3 TO 5 BY THE AO OF HI S ASSESSMENT ORDER REGARDING THE INVESTIGATION REPORT OF SEBI WHICH HOLDS KAILASH AU TO AND ENTRY OPERATORS OF ABUSE OF SYSTEM OF STOCK EXCHANGE BY PRICE RIGGING. IT IS THUS ESTABLISHED THAT THE APPELLANT ALONGWITH ENTRY OPERATORS CONTROLLING KAILASH AUTO AND THE BROKER M/S GUINESS SECURITIES LTD FORMED A NEXUS FOR PROVIDING BOGUS L TCG. 3.3 I HAVE ALSO PERUSED ALL THE SUBMISSIONS MADE BY THE APPELLANT DURING THE COURSE OF APPEAL PROCEEDINGS ALONGWITH THE SUPPORTING EVIDENC ES. THE MAIN CONTENTION OF THE APPELLANT THAT ALL THE SUPPORTING EVIDENCES IN THE FORM OF BANK STATEMENT, CONTRACT NOTES, DELIVERY INSTRUCTION PROVES THE GENUINENESS OF THE TRANSACTIONS. IN MY VIEW, ALL THESE DOCUMENTS AS REFERRED TO BY THE APPELLANT ARE MERE DOCUMENTS AND NOT ANY EVIDENCE. THE WHOLE TRANSACTIONS ARE NOT NATURAL AT ALL. IN MY OPINION, PAYMENT MADE ITA NO.2196, 2662, 2559, 2134/K/18, 125, 187, 326, 330, 357 & 363/K/19 PAGE 7 THROUGH BANKING CHANNEL DOES NOT CONSTITUTE THE TRA NSACTIONS TO BE GENUINE TRANSACTION SINCE THE BANKING DOCUMENTS ARE MERELY SELF SERVING RECITALS. NONE OF THE MATERIAL PRODUCED BY THE APPELLANT IS ENOUGH TO JUS TIFY THE HUGE GAINS AS CLAIMED UNDER THE HEAD LTCG. 3.4 IN A PENNY STOCK WHICH HAS NO BUSINESS ACTIVITY OR ANY PLAN OR INITIATIVE OR ANY PROSPECT FOR GROWTH, INVESTORS NORMALLY SELL OFF SU CH STOCK WHENEVER PRICE HAS APPRECIATED TO SOME EXTENT AND THERE IS TOTAL UNCER TAINTY TO HOLD SUCH STOCK FOR FABULOUS APPRECIATION WHEN THE INVESTMENT IS NOT BA CKED BY ANY FUNDAMENTAL OF THE COMPANY, ITS BUSINESS POLICY AND FUTURE PROSPECT. I N ABSENCE OF ANY SUCH FACT THE PERSON WHO IS SURE FOR HUGE APPRECIATION IN VALUE O F SUCH STOCK IS PROBABLY THE PERSON WHO KNOWS BEFOREHAND THAT ITS PRICE IS BEING MANIPU LATED IN A CONCERTED WAY AND HE IS PART OF SUCH SYSTEM. PRICE MOVEMENT AND VOLUME M OVEMENT OF THIS STOCK INDICATES SUCH FACT. THIS DEFIES ALL LOGIC OF HUMAN PROBABILI TY. IN THIS CONTEXT THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. DURGA PRASAD M ORE (82 ITR 540) HAS HELD THAT THE SURROUNDING CIRCUMSTANCES MUST BE SEEN TO FIND OUT THE REALITY OF THE RECITALS MADE IN THE DOCUMENT. THIS PRINCIPLE WAS REAFFIRMED BY T HE HON'BLE SUPREME COURT IN 214 ITR 801 WHERE IN IT WAS HELD THAT THE APPARENT CAN BE REJECTED WHERE THERE ARE REASONS TO BELIEVE THAT THE APPARENT IS NOT THE REA L FACT. 3.5 I AM OF THE OPINION THAT THE AO HAS RIGHTLY HEL D THAT THE TRANSACTIONS RELATING TO LONG TERM CAPITAL GAIN FALL IN THE REALM OF SUSPICIOUS AND DUBIOUS TRANSACTIONS. IN THE INSTANT CASE, THE AO COMPLETED THE ASSESSMENT VERY METICULOUSLY AFTER CONSIDERING THE SURROUNDING CIRCUMSTANCES. 3.6 I FIND ALL THE JUDGMENTS RELIED UPON BY THE APP ELLANT FALL FLAT IN THE FACE OF THE FACTS OF THE CASE AND THE PREPONDERANCE OF PROBABILITY AG AINST THE ASSESSEE. RECENTLY, THE BOMBAY HIGH COURT IN THE CASE OF SANJOY BIRNALCHAND JAIN VS. PR. CIT, VIDE AN ORDER DATED 10.04.2017 HELD THAT THE ASSESSEE HAD INDULGE D IN A DUBIOUS SHARE TRANSACTION MEANT TO ACCOUNT FOR THE UNDISCLOSED INCOME IN THE GARB OF LONG TERM CAPITAL GAIN SINCE THE ASSESSEE HAS NOT TENDERED COGENT EVIDENCE TO EXPLAIN HOW THE PRICE OF SHARES UNKNOWN COMPANY HAS JUMPED IN NO TIME. I AM ALSO PL ACE RELIANCE ON THE FOLLOWING JUDGEMENTS WHICH ARE RELEVANT:- 1. CHANDAN GUPTA VS CIT [2015] 54 TAXMANN.COM 10 (P UNJAB & HARYANA) [2015] 229 TAXMANN 173 HON'BLE PUNJAB 7 HARYANA HIGH COURT HELD THAT WHERE ASSESSEE COULD NOT EXPLAIN RECEIPT OF ALLEGED SHARE TRANSACTION PROFIT S CREDITED IN HIS BANK ACCOUNTS THEN SALE PROCEEDS HAD TO BE ADDED AS INCO ME UNDER SECTION 68. 2. USHA CHANDRESH SHAH VS ITO [2014-TIOL-1459-ITAT- MUM] WHERE HON'BLE ITAT MUMBAI HELD THAT IN CASE THE ASS ESSEE COULD NOT PRODUCE THE COPIES OF SHARE CERTIFICATES AND COPIES OF SHAR E TRANSFER FORMS. THE TRANSACTION OF PURCHASE OF SHARES COULD NOT BE CROS SED VERIFIED. THE SHARES OF THE COMPANY WAS DECLARED AS PENNY STOCK BY SEBI AND THE BROKER SANJU KABRA, THROUGH WHOM THE SHARES WERE SOLD BY THE ASS ESSEE WAS INDICTED FOR MANIPULATING THE PRICES OF PENNY STOCK SHARES. THE TAX AUTHORITIES HAVE RIGHTLY APPLIED THE TEST OF HUMAN PROBABILITIES TO EXAMINE THE CLAIM OF PURCHASE AND SALE OF SHARES MADE BY THE ASSESSEE. THE CIT(A) WAS JUSTIFIED IN CONFIRMING THE ORDER OF THE AO BY APPLYING THE TEST OF HUMAN PROBA BILITIES. ITAT BANGALORE, SMC-C BENCH. ITA NO. 1723/BANG/2018 , AY 2015-16, SMT. M.K. RAJESHWARI VS. INCOME TAX OFFICE, WARD-3, RAICHUR, DATE 12.10.2018, IN PARA NO. 8 & 9 OF THE ORDER AS UNDER :- ITA NO.2196, 2662, 2559, 2134/K/18, 125, 187, 326, 330, 357 & 363/K/19 PAGE 8 THE AO HAS ALSO EXAMINED THE SEBIS FINDINGS ABOU T THE ACCOMMODATION ENTRY PROVIDERS OBTAINED ON THE BASIS OF VARIOUS INVESTIGATIONS AND HAS BROUGHT OUT SUFFICIENT MATER IAL ON RECORD TO DEMONSTRATE THAT THE TRANSACTIONS ARE NOT GENUINE A ND HE ACCORDINGLY CONCLUDED THAT THE ON TERM CAPITAL GAIN BOOKED BY T HE ASSESSEE IN THE BOOKS WERE PRE-ARRANGED METHOD TO EVADE TAXES AND L AUNDERED MONEY. THE FINDINGS AND OBSERVATIONS OF THE AO WERE NOT CO NTROVERTED BY THE ASSESSEE BY PLACING ANY EVIDENCE. HE PLACED RELIANC E UPON THE VARIOUS JUDICIAL PRONOUNCEMENTS IN SUPPORT OF HIS CONTENTIO N THAT ONCE THE ASSESSEE HAS PLACED THE EVIDENCES WITH REGARD TO PA YMENTS AND THE IDENTITY OF THE PERSONS AND THE CREDIT WORTHINESS O F THE CREDITORS, NO ADDITION UNDER SECTION 68 IS CALLED FOR. SINCE THE AS HAS PLACED THE CONTRACT NOTE, PAYMENT THROUGH CHEQUES DENYING THE COMPANY WHOSE SHARES WERE TRANSACTED, THE GENUINENESS OF CLAIM OF LONG TERM CAPITAL GAIN SHOULD NOT HAVE BEEN DOUBTED. WE DO NOT FIND M ERIT IN THESE CONTENTIONS OF THE ASSESSEE IN THE LIGHT OF THE FAC TS THAT THERE IS PREVALENT PRACTICE IN THE COUNTRY THROUGH WHICH UNA CCOUNTED MONEY IS CONVERTED INTO LONG TERM CAPITAL GAIN BY CIRCUITOUS MEANS. WHILE DEALING WITH THE ISSUE OF LONG TERM CAPITAL GAIN AC CRUED TO THE ASSESSEE IN SORT SPAN, ONE HAS TO EXAMINE THE FINANCIALS OF THE COMPANY WHOSE SHARES WERE INFLATED WITHIN A SHORT PERIOD AND AFTE R THE SHARP RISE IN THE PRICE OF SHARES IT AGAIN COMES DOWN. IN THE INS TANT CASE, FINANCIALS WERE EXAMINED BY US AND WE FIND THAT THE FINANCIAL WORTH OF THE COMPANY IS MEAGRE AND NOT AT ALL WORTH TO BE INVEST ED THEREIN. WITH SUCH FINANCIALS, WE ARE UNABLE TO UNDERSTAND HOW TH ERE CAN BE MANIFOLD INCREASES IN THE SHARES. IN THE LIGHT OF T HE DURATION OF TRANSACTIONS AND THE FINANCIALS OF THE COMPANY WHOS E SHOES WERE TRANSACTED, WE FIND THAT THE REVENUE HAS BROUGHT SU FFICIENT MATERIAL ON RECORD TO DEMONSTRATE THAT UNACCOUNTED MONEY WAS IN TRODUCED IN THE BOOKS OF ACCOUNT THROUGH LONG TERM CAPITAL GAIN BY ADOPTING SUCH METHOD. WHATEVER JUDICIAL PRONOUNCEMENTS ARE RELIED ON, THESE ARE IN THOSE CASES WHERE THE TRANSACTIONS ARE GENUINE. UND ER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT REVENUE AUTH ORITIES HAVES RIGHTLY ADJUDICATED THE ISSUE AND NO INTERFERENCE I S CALLED FOR IN THE ORDER OF THE CIT(A). 9. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS DIS MISSED. 3.7. IN VIEW OF THE ABOVE DISCUSSION, I FIND NO INF IRMITY IN THE ORDER OF THE AO AND I CONFIRM THE ACTION OF THE AO IN HOLDING THE L ONG TERM CAPITAL GAIN OF RS.36,48,564/- TO BE BOGUS. GROUNDS NO.1 TO 5 OF TH E APPEAL ARE DISMISSED . 4. I HAVE GIVEN MY THOUGHTFUL CONSIDERATION TO RIVA L CONTENTIONS. LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTS BOT H THE LOWER AUTHORITIES IDENTICAL ACTION HOLDING THE ASSESSEES STCL AS BOGUS SINCE D ERIVED FROM RIGGING OF THE SCRIP PRICES IN ISSUE AND INVOLVING ACCOMMODATION ENTRY I N COLLUSION WITH THE CONCERNED ENTRY OPERATORS. HON'BLE APEX COURTS DECISIONS IN SUMATI DAYAL VS. CIT (1995) 80 TAXMANN.89/214 ITR 801 (SC) AND CIT VS. DURGA PRASAD MORE (1971) 82 ITR 540 ITA NO.2196, 2662, 2559, 2134/K/18, 125, 187, 326, 330, 357 & 363/K/19 PAGE 9 (SC) ARE QUOTED BEFORE ME DURING THE COURSE OF HEAR ING AT THE REVENUES BEHEST. IT STRONGLY ARGUES THAT THE DEPARTMENT HAS DISALLOWED/ ADDED THE IMPUGNED STCL BASED ON CIRCUMSTANTIAL EVIDENCE UNEARTHED AFTER A SERIES OF SEARCH ACTIONS / INVESTIGATIONS UNDERTAKEN BY THE DDIT(INV). I FIND NO MERIT IN REV ENUES INSTANT ARGUMENTS. THE FACT REMAINS THAT THE ASSESSEE HAS DULY PLACED ON R ECORD THE RELEVANT CONTRACT NOTES, SHARE CERTIFICATE(S), DETAILED CORROBORATIVE DOCUME NTARY EVIDENCE INDICATING PURCHASE / SALE OF SHARES THROUGH REGISTERED BROKERS BY BANKIN G CHANNEL, DEMAT STATEMENTS ETC., THE REVENUES ONLY CASE AS PER ITS PLEADINGS AND BO TH THE LOWER AUTHORITIES UNANIMOUSLY CONCLUSION THAT THERE IS VERY STRONG CI RCUMSTANTIAL EVIDENCE AGAINST THE ASSESSEE SUGGESTING BOGUS STCL ACCOMMODATION ENTRIE S. I FIND THAT THERE IS NOT EVEN A SINGLE CASE WHICH COULD PIN-POINT ANY MAKING AGAINS T THESE ASSESSEES WHICH COULD BE TAKEN AS A REVENUE NEXUS. I MAKE IT CLEAR THAT THE CBDTS CIRCULAR DATED 10.03.2003 HAS ITSELF MADE IT CLEAR THAT MERE SEARCH STATEMENT S IN THE NATURE OF ADMISSION IN ABSENCE OF SUPPORTIVE MATERIAL DO NOT CARRY WEIGHT. I NOTICE THAT THIS TRIBUNALS CO- ORDINATE BENCHS DECISION IN ITA NO. 2474/KOL/2018 IN MAHAVIR JHANWAR VS. ITO DECIDED ON 01.02.2019 HAS TAKEN INTO CONSIDERATION IDENTICAL FACTS AND C IRCUMSTANCES AS WELL AS LATEST DEVELOPMENTS ON LEGAL SIDE WHILST DELETING THE SIMILAR BOGUS LTCG ADDITION AS FOLLOWS:- 2. THE SOLE ISSUE THAT ARISES FOR MY ADJUDICATION I S WHETHER THE ASSESSING OFFICER WAS RIGHT IN REJECTING THE CLAIM OF THE ASSESSEE THAT H E HAD EARNED LONG TERM CAPITAL GAINS ON PURCHASE AND SALE OF THE SHARES OF M/S UNN O 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 L ONG TERM CAPITAL GAIN. HE MADE AN ADDITION OF THE ENTIRE SALE PROCEEDS OF THE SHAR ES AS INCOME AND REJECTED THE CLAIM OF EXEMPTION MADE U/S 10(38) OF THE ACT. THE EVIDEN CE PRODUCED BY THE ASSESSEE IN SUPPORT OF THE GENUINENESS OF THE TRANSACTION WAS R EJECTED. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL AND TH E LD. CIT(A), KOLKATA, HAD UPHELD THE ADDITION. THE LD. CIT(A) HAS IN HIS ORDER RELIE D UPON CIRCUMSTANTIAL EVIDENCE 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 T HE 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 INVESTI GATION, 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 BA SIS 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. ITA NO.2196, 2662, 2559, 2134/K/18, 125, 187, 326, 330, 357 & 363/K/19 PAGE 10 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 OPER ATORS 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 142 0/CHNY/2018; ORDER DT. 06/12/2018, FOR THE PROPOSITION THAT SUCH CAPITAL G AINS HAVE TO BE BROUGHT TO TAX. HE ALSO RELIED ON THE JUDGMENT OF THE HONBLE BOMBAY H IGH COURT IN THE CASE OF SANJAY BIMALCHAND JAIN VS. PRINCIPAL COMMISSIONER OF INCOM E-TAX-1, NAGPUR; [2018] 89 TAXMANN.COM 196 (BOMBAY) AND THE DECISION OF THE SM T. M.K. RAJESHWARI VS. ITO; ITA NO.1723/BNG/2018; ASSESSMENT YEAR 2015-16, ORDE R DT. 12/10/2018. 5. AFTER HEARING BOTH SIDES, I FIND THAT IN A NUMBE R OF CASES THIS BENCH OF THE TRIBUNAL AND JURISDICTIONAL CALCUTTA HIGH COURT HAS CONSISTE NTLY HELD THAT, DECISION IN ALL SUCH CASES SHOULD BE BASED ON EVIDENCE AND NOT ON GENERA LISATION, HUMAN PROBABILITIES, SUSPICION, CONJECTURES AND SURMISES. IN ALL CASES A DDITIONS WERE DELETED. SOME OF THE CASES WERE, DETAILED FINDING HAVE BEEN GIVEN ON THI S ISSUE, ARE LISTED BELOW: - SL.NO. ITA NO.S 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 IND USTRIAL HOLDINGS LTD. 3 250 ITR 539 CIT VS. EMERALD COMMERCIAL LTD. 23.03.2001 4 ITA NO.1236-1237/KOL/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 20.0 7.2018 8 ITA NO.456 OF 2007 BOMBAY HIGH COURT CIT VS. SHRI MUKESH RATILAL MAROLIA 18.01.2018 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 & SON S (HUF)(SUPRA), THE ISSUE WAS DECIDED AGAINST THE ASSESSEE FOR THE REASON THAT, T HE 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 NAT URAL 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 O F 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 AM BOUND TO FOLLOW THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN TH IS 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 CHE QUE, COPY OF BANK STATEMENTS, (C) COPY OF BALANCE SHEET DISCLOSING INVESTMENTS, ( D) COPY OF DEMAT STATEMENT ITA NO.2196, 2662, 2559, 2134/K/18, 125, 187, 326, 330, 357 & 363/K/19 PAGE 11 REFLECTING PURCHASE, (E) COPY OF MERGER ORDER PASSE D 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 S ALE OF SHARES, (I) COPY OF BANK STATEMENT REFLECTING SALE RECEIPTS, (J) COPY OF BRO KERS 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 ISSUE S ARE IN FAVOUR OF THE ASSESSEE. THESE ARE SQUARELY APPLICABLE TO THE FACTS OF THE C ASE. THE LD. DEPARTMENTAL REPRESENTATIVE, THOUGH NOT LEAVING HIS GROUND, COUL D NOT CONTROVERT THE CLAIM OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ISSUE IN QUES TION IS COVERED BY THE ABOVE CITED DECISIONS OF THE HONBLE JURISDICTIONAL CALCUTTA HI GH COURT AND THE ITAT. I AM BOUND TO FOLLOW THE SAME. 8. IN VIEW OF THE ABOVE DISCUSSION I DELETE THE AD DITION MADE U/S 68 OF THE ACT, ON ACCOUNT OF LONG TERM CAPITAL GAINS. 5. COUPLED WITH THIS, HON'BLE JURISDICTIONAL HIGH C OURTS OTHER DECISIONS IN CIT VS. RUNGTA PROPERTIES PVT. LTD. ITA NO.105 OF 2016, CIT VS. SHREYAHI GANGULY ITA NO. 196 OF 2012, M/S CLASSIC GROWERS LTD VS. CIT ITA NO . 129 OF 2012 ALSO HOLD SUCH TRANSACTIONS IN SCRIPS SUPPORTED BY THE CORRESPONDI NG RELEVANT EVIDENCE TO BE GENUINE. I FURTHER MADE IT CLEAR THAT THIS ASSESSEE HAD FILE D ALL OF HER DETAILED EVIDENCE DURING SCRUTINY. THE ASSESSING OFFICERS SHOW CAUSE NOTICE (S) U/S. 142(1)/143(2) OF THE ACT NOWHERE SOUGHT TO TREAT THE IMPUGNED PROFITS AS BOG US. I ADOPT THE ABOVE EXTRACTED REASONING MUTATIS MUTANDIS THEREFORE TO DELETE THE IMPUGNED STCL DISALLOWANCE / ADDITION OF RS.36,48,564/-. UNEXPLAINED COMMISSION EXPENDITURE DISALLOWANCE, IF ANY SHALL AUTOMATICALLY FOLLOW SUIT AS A NECESSARY CORO LLARY. NO OTHER ARGUMENT OR GROUND HAS BEEN AGITATED BEFORE ME DURING THE COURSE OF HE ARING. THIS LEAD CASE ITA NO.2662/KOL/2018 IS ALLOWED IN ABOVE TERMS. [ SAME ORDER TO FOLLOW IN ALL THE REMAINING NINE APPEAL(S) ] IN ABSENCE OF ANY DISTINCTION BEING POINTED OUT A T REVENUES BEHEST. 6. ALL THESE ASSESSEES APPEALS ARE ALLOWED IN ABOV E TERMS. A COPY OF THE INSTANT COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILE( S). ORDER PRONOUNCED IN OPEN COURT ON 19/07/2019 SD/- (S.S. GODARA) JUDICIAL MEMBER KOLKATA, *DKP/SR.PS ' - 19/07/2019 / COPY OF ORDER FORWARDED TO:- ITA NO.2196, 2662, 2559, 2134/K/18, 125, 187, 326, 330, 357 & 363/K/19 PAGE 12 1. /ASSESSEE-KANAK KR. MALOO, 133, CANNING ST, KOLKATA -001/DINESH KR. BANSAL (HUF), R.NO.5 7, 3 RD FL, 134/1, M.G.ROAD, KOLKATA-07/ VIJAY KR. BHATTER C/ O SUBASH AGARWAL & ASSOCIATES, ADVOCATES SIDDHA GIBSON, 1, GI BSON LANE, SUITE 213, 2 ND FLOOR, KOLKATA-69/ BIJAYA TAH, C/O S.N .GHOSH & ASSOCIATES, ADVOCATES SEBEN BROTHERS LODGE P.O. BUROSHIBTALA, P.S. CHINSURAH, DIST.HOOGHLY/ MRS. MANJU AGARWAL 1 7, GANESH CH. AVENUE, 4 TH FL, KOLKATA-13/ DEEPIKA KEDIA, 5, QU EENS PARK, FLAT NO.GSW GR. FL. KOLKATA-19/ AMIT KR. GARG, 19, T UBE ROSE LANE, ASHIANA GARDENS SONARI JAMSHEDPUR-831011/PA WAN KR. BANSAL 242/1B, APC BOSE ROAD, KOLKATA-700004/M/S L AKSHMINARAYAN MAHENDRA KUMAR (HUF) 12A, N.S. ROAD, 1 ST FL, R.NO.19, KOLKATA-001.SHASHI AGARWAL, 159 RABINDRA SARANI, K OLKTAT-007 2. /REVENUE-ITO WD-35(3), AAYAKAR BHAWAN POORVA, 110, SHANTI PALLY, KOLKATA-107/ITO WD- 43(1), 3, GOVT. PLACE (WEST), GROUND FLOOR, KOLKATA-01/D CIT, CIRI-63, 169 AJC BOSE ROAD, BAMBOO VILLA, 9 TH FLOOR, KOLKTA-14/ITO WED-2(4), AAYKAR BHAWAN,BWN. KACHARI ROAD, COURT C OMPOUND, P.O.&P.S. BURDWAN. DIST. PURBA BARDDHAMAN/ITO WD-61(4), KOLKATA/ITO WD-22(1), 54/1 RAFI AHMED KIDWAI STR EET, KOLKAT-16/ITO WD-24(1), AAYKAR BHAWAN, G.T.ROAD CHIN SURAH HOOGHLY-712101/ITO WD-44(1) 3, GOVT. PLACE, KOLKA TA-001/ITO WD-35(3), AAYAKAR BHAAN POORVA 110, SHANTIPALLY, KOLKA TA-107/ITO WED-45(2), 3 GOVT. PLACE (WEST) KOLKATA-001 3. % ' / CONCERNED CIT 4. ' - / CIT (A) 5. ( ++% , % / DR, ITAT, KOLKATA 6. - / GUARD FILE. BY ORDER/ , /TRUE COPY/ %,