J.V.S. FOODS P. LTD., Jaipur V. DCIT, Jaipur

ITA 133/JPR/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6382 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-08-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 11-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SEEMA MEENA JCIT DHK
• Assessee Lawyers: ROHAN SOGANI CAS
• Keywords: Income from undisclosed sources; Share purchase agreement; Opportunity of cross examination; Fair market value; Corroborative evidences; Assessment record
• Section: 133(6)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,O A JH HKKXPUN ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 133/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11. M/S. J.V.S. FOODS PVT. LTD., 138, NEW COLONY, M.I. ROAD, JAIPUR. CUKE VS. THE DCIT, CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAACJ 4620 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJEEV SOGANI AND SHRI ROHAN SOGANI (CAS) JKTLO DH VKSJ LS@ REVENUE BY : SMT. SEEMA MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 05.07.2018. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 16/07/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 17 TH DECEMBER, 2015 OF LD. CIT (A) FOR THE ASSESSMENT YE AR 2010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT (A) IS WRONG, UNJUST AND HAS ERRED IN LAW IN CO NFIRMING FINDING RECORDED BY THE ASSESSING OFFICER THAT THE APPELLANT HAS FAILED TO PROVE EXISTENCE OF LONG TERM CAPITAL GAIN OF RS. 2,65,27,020/- ON SALE OF LISTED SHARES ON RECOGNIZE D STOCK EXCHANGE AND THEREBY UPHOLDING ADDITION OF SAID RS. 2,65,27,020/- TO THE INCOME OF THE APPELLANT AS INC OME FROM 2 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. UNDISCLOSED SOURCES AFTER REJECTING APPELLANTS CLA IM OF ITS EXEMPTION U/S 10(38) OF THE I.T. ACT, 1961. 2. THAT THE APPELLANT CRAVES THE PERMISSION TO ADD TO OR AMEND TO ANY OF THE ABOVE GROUNDS OF APPEAL OR TO WITHDRAW A NY OF THEM. 2. THE ASSESSEE IS A PRIVATE LIMITED COMPANY AND EN GAGED IN MANUFACTURING OF NUTRITION FOOD TO BE SUPPLIED IN VARIOUS GOVERNMENT SCHEMES. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 15.10.2010 DECLARING LOSS OF RS. 4,36,62,802/- AND LONG TERM CAPITAL GAIN OF RS. 2,65,27,020/- WHICH WAS CLAIMED AS EXEMPT UNDER SECTION 10(38) OF THE IT ACT. THE LONG TERM CAPITAL GAIN CLAIMED BY THE ASSESSEE IS ARISING FROM SALE OF 98,000 SHARES OF M/S. WELL PACK PAPERS & CONTAINERS LTD. THE AO DISALLOWED THE CLAIM OF THE ASSESSEE BY TREATING THE SAME AS BOGUS AND HOLDING THAT THE ASSESSEE HAS INTRODUC ED ITS UNACCOUNTED INCOME IN THE SHAPE OF LONG TERM CAPITAL GAIN. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (A). THE LD. CIT (A) THOUGH CON FIRMED THE ACTION OF THE AO, HOWEVER, ALLOWED THE CLAIM OF PURCHASE CONSIDERATIO N AND SUSTAINED THE ADDITION TO THE EXTENT OF CAPITAL GAIN INSTEAD OF FULL AMOUNT O F SALE PROCEEDS MADE BY THE AO. 3. WE HAVE HEARD THE LD. A/R AS WELL AS THE LD. D/R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE FACTS AS WELL AS THE ISSUE INVOLVED IN THIS APPEAL ARE IDENTICAL TO THE FACTS AND ISSUE INVOLVE D IN THE APPEAL IN ITA NO. 826/JP/2014. THE DETAILS OF PURCHASE AND SALE OF S HARES ARE GIVEN BY THE AO IN PARA 2 OF THE ASSESSMENT ORDER AS UNDER :- S. NO. NAME OF SCRIP NO OF SHARES PURCHAS ED DATE OF PURCHASE AMOUNT DATE OF SALE NO. OF SHARES AMOUNT GAIN/LOSS PERIOD OF HOLDING (DAYS) 3 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. 1 WELL PACK 11000 15/10/20 08 70331 16/10/20 09 11000 2977576 2907244 366 2 WELL PACK 14000 15/10/20 08 89513 20/10/20 09 14000 3880506 3790992 370 3 WELL PACK 20204 21/10/20 08 129471 26/10/20 09 20204 5607765 5478294 370 4 WELL PACK 9796 21/10/20 08 62774 27/10/20 09 9796 2722581 2659806 371 5 WELL PACK 22000 28/10/20 08 140948 29/10/20 09 22000 6116609 5975660 366 6 WELL PACK 21000 28/10/20 08 134542 30/10/20 09 21000 5849565 5715023 367 TOTAL 98000 627582 98000 27154602 26527020 IN THIS CASE THE ASSESSEE HAS RECORDED THE PURCHASE TRANSACTIONS OF SHARES IN THE BOOKS OF ACCOUNTS AND SHOWN IN THE BALANCE SHEET AS ON 31 ST MARCH, 2009. THE BOOKS OF ACCOUNTS OF THE ASSESSEE WERE DULY AUDITED AND HAVE NOT BEEN DISPUTED BY THE AO. THE AO HAS DENIED THE CLAIM OF THE ASSESSEE BY RELYING ON THE REPORT OF THE ITO INVESTIGATION, INDORE AS WELL AS THE STATEMENT OF SHRI MAHESH PANCHOLI RECORDED BY THE AO. BOTH THE PARTIES HAVE ADVANCED THE ARGU MENTS SIMILAR AS IN THE CASE OF SHRI PRAMOD KUMAR LODHA VS. ITO IN ITA NO. 826/JP/2 014. ACCORDINGLY, THE CONTENTIONS OF THE PARTIES AS WELL AS THE FINDINGS OF THE TRIBUNAL IN THE CASE OF PRAMOD KUMAR LODHA IN ITA NO. 826/JP/2014 ARE REPRO DUCED AS UNDER :- 3. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBM ITTED THAT THE ASSESSEE PRODUCED ALL THE RELEVANT RECORD AND EVIDE NCES IN SUPPORT OF THE CLAIM AND ENTIRE TRAIL OF DOCUMENTS SUBSTANTIATING THE TRANSACTION OF PURCHASE AND SALE OF SHARES, BEFORE THE AUTHORITIES BELOW. THE ONLY REQUIREMENT FOR CLAIMING EXEMPTION UNDER SECTION 10(38) IS THE TRAN SACTION OF SALE UNDERTAKEN AND SUBJECTED TO STT IN RESPECT OF SHARES OF A COMP ANY LISTED IN THE RECOGNIZED STOCK EXCHANGE. THE LD. A/R HAS SUBMITT ED THAT THE AO HAS NOT DISPUTED THAT THE COMPANY M/S. WELL PACK PAPERS & C ONTAINERS LTD. WAS LISTED 4 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. IN THE STOCK EXCHANGE AND THOUGH THE ASSESSEE PURCH ASED THE SHARES THROUGH OFF MARKET TRANSACTION BUT THE SHARES WERE DEMATERI ALIZED BEFORE THE SAME WERE SOLD AFTER ONE YEAR FROM THE D-MAT ACCOUNT OF THE ASSESSEE. THUS THE LD. A/R HAS SUBMITTED THAT THE ASSESSEE HAS PRODUCE D ALL THE RELEVANT DOCUMENTS AND EVIDENCES ESTABLISHING THE PURCHASE O F SHARES, DEMATERIALIZATION OF THE SAME AND THEREAFTER SALE O F SHARES FROM D-MAT ACCOUNT AGAINST THE CONSIDERATION RECEIVED THROUGH BANKING CHANNEL. THE AO AS WELL AS THE LD. CIT (A) HAS NOT DISPUTED THE SAL E OF SHARES AND RECEIPT OF CONSIDERATION BUT HAVE TREATED THE TRANSACTION OF L ONG TERM CAPITAL GAIN AND CLAIM OF EXEMPTION UNDER SECTION 10(38) AS BOGUS. THE LD. A/R HAS FURTHER CONTENDED THAT THE ASSESSEE HAS PURCHASED THE SHARE S IN THE MONTH OF NOVEMBER, 2008 AND WERE DULY RECORDED IN THE BOOKS OF ACCOUNT AND SHOWN IN THE BALANCE SHEET OF THE ASSESSEE AS ON 31 ST MARCH, 2009. THEREFORE, THE SHARES WHICH WERE ALREADY RECORDED IN THE BOOKS OF ACCOUNT AND SHOWN IN THE BALANCE SHEET AS ON 31 ST MARCH, 2009 CANNOT BE TREATED AS BOGUS TRANSACTION ONLY BECAUSE THE ASSESSEE EARNED A HUGE CAPITAL GAI N DUE TO THE ABNORMAL INCREASE IN THE MARKET PRICE OF THE SHARES. HE HAS FURTHER CONTENDED THAT THE AO HAS RELIED UPON THE STATEMENT OF SHRI MAHESH PAN CHOLI OF M/S. ARIHANT CAPITAL MARKET LTD. HOWEVER, THE SAID PERSON WAS N OT IN THE EMPLOYMENT OF THE COMPANY WHEN THE TRANSACTION OF PURCHASE OF SHA RES OF M/S. WELL PACK PAPERS & CONTAINERS TOOK PLACE IN THE MONTH OF NOVE MBER, 2008. THE AO HIMSELF HAS ACCEPTED THIS FACT THAT SHRI MAHESH PAN CHOLI IS IN EMPLOYMENT OF M/S. ARIHANT CAPITAL MARKET LTD. ONLY FOR FOUR YEAR S WHEN THE STATEMENT WAS RECORDED IN THE MONTH OF MARCH, 2013, WHEREAS THE T RANSACTION OF PURCHASE OF SHARES TOOK PLACE PRIOR TO THE FOUR YEARS IN THE MONTH OF NOVEMBER, 2008. FURTHER, MERE DENIAL OF HAVING TRANSACTION IS NOT S UFFICIENT WHEN THE ASSESSEE PRODUCED ALL THE DOCUMENTARY EVIDENCES. THUS THE LD . A/R HAS CONTENDED THAT IN THE ABSENCE OF ANY CONTRARY EVIDENCE TO PROVE TH E TRANSACTION TO BE BOGUS, THE DENIAL OF CLAIM BY THE AO ON THE BASIS OF SUSPI CION AND DOUBT IS NOT PROPER AND JUSTIFIED. HE HAS FURTHER CONTENDED T HAT THE AO EVEN NOT PROVIDED THE OPPORTUNITY TO THE ASSESSEE TO CROSS E XAMINE THE INSPECTOR WHO 5 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. HAS CONDUCTED THE ENQUIRY OR SHRI MAHESH PANCHOLI W HOSE STATEMENT WAS RECORDED BY THE AO AT THE BACK OF THE ASSESSEE. THE AO ISSUED NOTICE UNDER SECTION 133(6) TO ONE SHRI SATYANARAIN RATHI BUT HE DID NOT APPEAR BEFORE THE AO AND NON APPEARANCE OF THE SAID PERSON CANNOT BE A BASIS FOR CONSIDERING THE TRANSACTION TO BE BOGUS. THE AO DID NOT TAKE A NY FURTHER STEP FOR ENSURING THE PRESENCE OF SHRI SATYANARAIN RATHI THO UGH A CONFIRMATION WAS FILED ADMITTING THE TRANSACTION OF SALE OF SHARES T O THE ASSESSEE IN THE MONTH OF NOVEMBER, 2008. THUS THE TRANSACTION OF PURCHAS E AND SALE OF SHARES WAS VERY MUCH PROVED BY THE SUPPORTING EVIDENCES, WHICH WAS NOT DISPUTED BY THE AO. THE LD. A/R HAS RELIED UPON THE DECISION O F HONBLE SUPREME COURT IN THE CASE OF CIT VS. SUNITA DHADDA, 403 ITR 183 AND SUBMITTED THAT THE HONBLE SUPREME COURT HAS UPHELD THE DECISION OF HO NBLE JURISDICTIONAL HIGH COURT WHEREIN THE ADDITION MADE BY THE AO ON ACCOUN T OF ON MONEY WAS DELETED BY THE TRIBUNAL AND HAVE UPHELD BY THE HON BLE HIGH COURT WAS FOUND TO BE PROPER AND JUSTIFIED AS THE AO MADE SUCH AN A DDITION ON THE BASIS OF THE STATEMENT OF A WITNESS WITHOUT GIVING AN OPPORT UNITY OF CROSS EXAMINATION TO THE ASSESSEE. THE LD. A/R HAS ALSO RELIED UPON THE DECISION OF COORDINATE BENCH OF THIS TRIBUNAL DATED 31.01.2018 IN THE CASE OF SHRI PRAMOD JAIN & OTHERS IN ITA NOS. 368 TO 372/JP/2017 AND SUBMITTED THAT THE TRIBUNAL HAS HELD THAT IT IS NOT EXPECTED FROM THE ASSESSEE INDI VIDUAL TO PRODUCE THE PRINCIPAL OFFICERS OF THE ASSESSEE RATHER THE AO OU GHT TO HAVE SUMMONED THEM IF THE EXAMINATION OF OFFICERS WERE CONSIDERED NECESSARY BY THE AO. THE AO OUGHT NOT TO HAVE ASKED THE ASSESSEE TO PROD UCE THE PRINCIPAL OFFICERS OF THOSE COMPANIES. THE LD. A/R HAS ALSO RELIED UP ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF PRINCIPAL CIT VS. SHUBH MINES PVT. LTD. DATED 3 RD MAY, 2016 IN DBIT APPEAL NO. 96 OF 2015 AND SUBMIT TED THAT HONBLE HIGH COURT HAS HELD THAT IN THE ABSENCE OF COGENT EVIDENCE ON RECORD ESTABLISHING THAT MONEY SHOWN TO HAVE RECEIVED AS S HARE APPLICATION MONEY WAS, AS A MATTER OF FACT, UNACCOUNTED MONEY BELONGI NG TO THE ASSESSEE, THE FINDING OF THE AO BASED ON SUSPICION HAS RIGHTLY BE EN HELD NOT SUSTAINABLE IN THE EYES OF LAW. HE HAS THEN REFERRED TO THE DECI SION OF MUMBAI BENCH OF 6 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. THE TRIBUNAL ( SPECIAL BENCH) IN THE CASE OF GTC I NDUSTRIES VS. ACIT, 164 ITD 1 AND SUBMITTED THAT IT WAS HELD THAT NO ADDITION C AN BE MADE IN THE HANDS OF THE ASSESSEE IF NO DIRECT EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE AO TO HOLD THAT THE ASSESSEE INTRODUCED HIS OWN UNACCOUNT ED MONEY BY WAY OF BOGUS LONG TERM CAPITAL GAIN. HE HAS ALSO RELIED U PON FOLLOWING DECISIONS :- PRINCIPAL CIT VS. PREM LAL GANDHI 94 TAXMANN.COM 156 (P&H) PRINCIPAL CIT VS. SHRI HITESH GANDH ITA NO. 18 OF 2017 (P&H) CIT VS. SMT. POOJA AGARWAL, DBIT APPEAL NO. 385/2011 (RAJ.HC) CIT VS. CARBO INDUSTRIAL HOLDINGS LTD. 116 TAXMAN 159 (CAL.) CIT VS. EMERALD COMMERCIAL LTD. 120 TAXMAN 282 (CAL.) HENCE, THE LD. A/R HAS SUBMITTED THAT IN THE ABSENC E OF ANY FINDING BY THE INVESTIGATION WING HOLDING THE TRANSACTION AS BOGUS AND ASSESSEE BEING PART OF ANY RACKET OF THE ENTRY PROVIDERS, DISALLOWANCE MADE BY THE AO IS UNJUSTIFIED. THE AO HAS NOT REBUTTED THE DOCUMENTA RY EVIDENCE PRODUCED BY THE ASSESSEE AND FURTHER AO PLACED RELIANCE ON THE STATEMENT OF WITNESS, REPORT OF THE ITO INVESTIGATION, INDORE WITHOUT GIV ING AN OPPORTUNITY OF CROSS EXAMINATION TO THE ASSESSEE BEFORE THE ORDER PASSED BY THE AO IS NOT SUSTAINABLE. 3.1. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED T HAT THE ASSESSEE HAS NOT PROVED THE GENUINENESS OF THE PAYMENT FOR P URCHASE OF SHARES AND THE BILLS FOR PURCHASE OF SHARES MENTIONED ONLY CAS H PAYMENT AND NOT THROUGH BANKING CHANNEL. THEREFORE, IN THE ABSENCE OF ANY EVIDENCE WHICH CAN BE VERIFIED INDEPENDENTLY, THE SAID BILL PRODUC ED BY THE ASSESSEE CANNOT BE ACCEPTED. THE AO HAS CONDUCTED THE DUE ENQUIRY TO VERIFY THE 7 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. GENUINENESS OF THE TRANSACTION. AS PER THE REPORT OF THE ITO INVESTIGATION, INDORE, THE SHARE BROKER WAS NOT FOUND AT THE GIVEN ADDRESS AND, THEREFORE, WHEN THERE WAS NO EXISTENCE OF THE SHARE BROKER THE N THE DOCUMENTS RELIED UPON BY THE ASSESSEE AS ISSUED BY THE ALLEGED SHARE BROKER CANNOT BE CONSIDERED AS GENUINE EVIDENCE. THE LD. D/R HAS FU RTHER SUBMITTED THAT THE AO HAS ALSO RECORDED THE STATEMENT OF SHRI MAHESH P ANCHOLI, THE AUTHORIZED PERSON OF M/S. ARIHANT CAPITAL MARKET LTD. THE CON FIRMATION FILED BY THE ASSESSEE CLEARLY MENTIONS THAT M/S. ARIHANT SECURIT IES & SHARES IS AN UNIT OF M/S. ARIHANT CAPITAL MARKETS LTD., THEREFORE, IN TH E ABSENCE OF THE SHARE BROKER, THE AO CONDUCTED THE ENQUIRY FROM THE PAREN T COMPANY M/S. ARIHANT CAPITAL MARKETS LTD. THROUGH ITO INVESTIGATION, IND ORE WHO HAD DENIED HAVING ANY TRANSACTION OF SALE OF SHARES OF M/S. WE LL PACK PAPERS & CONTAINERS LTD. TO THE ASSESSEE. THE LD. D/R HAS T HUS SUBMITTED THAT THE AO HAS BROUGHT ON RECORD EVIDENCE IN THE SHAPE OF ENQU IRY AND STATEMENTS TO HOLD THAT THE TRANSACTION OF PURCHASE AND SALE OF S HARES IS BOGUS, IN THE NATURE OF ACCOMMODATION ENTRY TO CLAIM LONG TERM CA PITAL GAIN WHICH IS EXEMPT FROM TAX. THE ASSESSEE WAS ALSO GIVEN THE I NSPECTORS REPORT AS WELL AS THE STATEMENT OF SHRI MAHESH PANCHOLI WHICH WAS DULY RESPONDED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS AND, THE REFORE, THE ASSESSEE WAS GIVEN OPPORTUNITY AND CONFRONTED WITH THE REPOR T OF THE INSPECTOR INVESTIGATION, INDORE AS WELL AS THE STATEMENT OF S HRI MAHESH PANCHOLI. THE LD. D/R HAS FURTHER SUBMITTED THAT THE CASE LAW REL IED UPON BY THE ASSESSEE ARE NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE AS IN THOSE CASES THE TRANSACTIONS WERE THROUGH BANKING CHANNEL WHEREAS T HE ASSESSEE HAS CLAIMED TO HAVE PAID THE PURCHASE CONSIDERATION IN CASH. S HE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE DETAILS OF PURCHASE AND SA LE OF SHARES IN QUESTION ARE GIVEN BY THE AO IN PARA 3.1 PAGE 10 OF THE ASSESSME NT ORDER AS UNDER :- 8 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. SALE OF SHARES (NOV & DEC, 09) RS.7408697/- QUANTITY RATES TRANSACTION DATE SD ON DEL + STT + SERVICE TAX + TURNOVER TAX TOTAL 923 RS.327.18 NOV, 26 991.06 561559 797 RS.326.93 NOV, 26 4780 RS.311.22 DEC, 02 2620 1485010 2000 RS.309.42 DEC, 04 500 RS.308.63 DEC, 04 1362.12 771792 5000 RS.318.20 DEC, 15 9000 RS.334.16 DEC, 15 8104 4590335 7408696 LESS COST/PURCHASE OF 2300 SHARES @ RS.6.37 PER SHA RE FOR RS. 147839/- (SOLD ON 4.11.2008) INCLUDING STT AND BROKERAGE OF RS. 879/- FROM M/S. ARIHANT SECURITIES & SHARES, INDORE LTCG RS. 7261309/- THUS IT IS CLEAR THAT THE ASSESSEE PURCHASED 2300 S HARES OF M/S. WELL PACK PAPERS & CONTAINERS LTD. @ RS. 6.37 PER SHARE. THE ASSESSEE PRODUCED THE COPY OF PURCHASE BILL DATED 4 TH NOVEMBER, 2008 ISSUED BY M/S. ARIHANT SECURITIES & SHARES. THE TOTAL CONSIDERATION FOR P URCHASE OF SHARES WAS PAID AT RS. 1,47,839/- WHICH INCLUDED BROKERAGE, STT ETC . THE ASSESSEE ALSO PRODUCED THE LEDGER ACCOUNT SHOWING THE TRANSACTION OF PURCHASE AND PAYMENT TO M/S. ARIHANT SECURITIES & SHARES LTD. T HEREAFTER THE SHARES WERE DEMATERIALIZED AND ASSESSEE PRODUCED THE D-MAT ACCO UNT REFLECTING THE BALANCE OF SECURITIES OF VARIOUS COMPANIES INCLUDIN G 2300 SHARES OF M/S. WELL PACK PAPERS & CONTAINERS. WE FIND THAT THIS IS NOT AN ISOLATED TRANSACTION OF PURCHASE AND SALE OF SHARES BY THE ASSESSEE BUT THE RE ARE NUMBER OF TRANSACTIONS IN THE D-MAT SHARES OF DIFFERENT COMPA NIES THROUGH IPO AS WELL AS OTHER TRANSACTIONS. IT IS ALSO NOT IN DISPUTE T HAT THIS COMPANY M/S. WELL PACK PAPERS & CONTAINERS LTD. WAS LISTED IN THE STO CK EXCHANGE AND THE AO HAS NOT DISPUTED THE PREVAILING MARKET PRICE OF THE SE SHARES AT THE TIME OF PURCHASE AS WELL AS AT THE TIME OF SALE. THOUGH THE RE IS AN INCREASE OF MANY 9 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. FOLD IN THE MARKET PRICE OF THE SHARES AT THE TIME OF SALE IN COMPARISON TO THE PURCHASE, HOWEVER, THE SAID PRICE WAS NOT DISPUTED AS THE PREVAILING MARKET PRICE AT THE RELEVANT POINT OF TIME. SINCE THIS CO MPANY WAS LISTED IN THE STOCK EXCHANGE, THEREFORE, THERE WAS NO HURDLE IN ASCERTA INING THE PREVAILING MARKET PRICE OF THE SHARES AT THE POINT OF PURCHASE AS WELL AS SALE. SINCE THE MARKET PRICE AND THE PRICE AT WHICH THE ASSESSEE PU RCHASED THE SHARES AND SUBSEQUENTLY SOLD ARE NOT IN DISPUTE, THEN MERELY B ECAUSE THERE IS HUGE CAPITAL GAIN EARNED BY THE ASSESSEE ON THE TRANSACT ION CANNOT BE A BASIS FOR HOLDING THE SAME AS BOGUS TRANSACTION. THOUGH THE I NCREASE IN THE MARKET PRICE OF THE SHARES IS ABNORMAL AND MANY FOLD, HOWE VER, THE SAME CAN BE ONLY A REASON TO CONDUCT THE ENQUIRY TO VERIFY THE GENUINENESS OF THE CLAIM BUT CANNOT BE A BASIS OF HOLDING THE TRANSACTION AS BOGUS. THE ASSESSEE HAS ALSO RECORDED THE TRANSACTIONS OF PURCHASE OF SHARE S IN THE BOOKS OF ACCOUNTS AND AS PER THE BALANCE SHEET AS ON 31 ST MARCH, 2009 THESE SHARES HAVE BEEN SHOWN IN THE INVESTMENT SCHEDULE OF THE ASSESSEE. THE BALANCE SHEET AS ON 31 ST MARCH, 2009 HAS BEEN ANNEXED BY THE AO TO THE ASSE SSMENT ORDER AND, THEREFORE, IT IS PART OF THE ASSESSMENT RECORD WHIC H SHOWS THE SHARES SHOWN IN THE BALANCE SHEET AS ON 31 ST MARCH, 2009. THE FACTS OF SHOWING THESE SHARES IN THE BALANCE SHEET OF THE ASSESSEE FOR THE PRECEDING YEAR AND SALE OF THESE SHARES IN THE SUBSEQUENT YEAR IN THE MONTH OF NOVEMBER AND DECEMBER, 2009 IS ALSO NOT IN DISPUTE AS THE AO AS WELL AS THE LD. CIT (A) HAS ACCEPTED THIS FACT. THE LD. CIT (A) HAS ALLOWED TH E PURCHASE CONSIDERATION PAID BY THE ASSESSEE FROM THE ADDITION MADE BY THE AO WHICH SHOWS THAT THE PURCHASE CONSIDERATION WAS ACCEPTED BY THE LD. CIT (A). THE LD. CIT (A) IN PARA 4.2 OF THE IMPUGNED ORDER HAS ACCEPTED THIS FA CT THAT THE AO HAS NOT DISPUTED THE SALE TRANSACTION PERTAINING TO THE ABO VE SHARES AND ONLY THE PURCHASE OF SHARES IS THE TAINTED TRANSACTION. PAR A 4.2 AND 4.2(E) OF THE LD. CIT (APPEALS) ARE REPRODUCED AS UNDER :- 10 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. 4.2. THE ASSESSING OFFICER HAS NOT DISPUTED THE S ALE TRANSACTION PERTAINING TO THE ABOVE SHARES. IT IS WITH RESPECT TO THE PURCHASE OF SHARES THAT THE FOLLOWING FACTS MERIT CONSIDERATION . (A) XXXXXXXX (B) XXXXXXXX (C) XXXXXXXX (D) XXXXXXXX (E) THE SHARES HAVE BEEN CREDITED IN THE DEMAT ACCO UNT OF THE APPELLANT ONLY A FEW DAYS BEFORE THE SALE OF SHARES THROUGH THE STOCK EXCHANGE. THUS THE SALES OF THE SHARES ARE NOT IN DISP UTE AS THE SAME WERE SOLD FROM THE D-MAT ACCOUNT AGAINST THE CONSIDERATION WH ICH WAS RECEIVED BY THE ASSESSEE THROUGH BANKING CHANNEL. THE DEMATERIALIZ ATION OF THE SHARES IN THE D-MAT ACCOUNT IS ALSO NOT IN DISPUTE HENCE THE HOLD ING OF THE SHARES IN THE D- MAT ACCOUNT BY THE ASSESSEE PRIOR TO THE SALE AS WE LL AS THE SALE TRANSACTION ARE NOT IN DISPUTE. ONCE HOLDING OF THE SHARES PRI OR TO THE SALE AND THE SALE TRANSACTION ITSELF ARE NOT IN DISPUTE THEN THE SAME CANNOT BE HELD AS BOGUS TRANSACTION THOUGH MAY BE A CASE OF INTRODUCING UNA CCOUNTED INCOME OF THE ASSESSEE FOR DEPRESSING THE PURCHASE PRICE OF THE S HARES. HOWEVER, IN THE ABSENCE OF ANY MATERIAL OR THE FACT TO SHOW THAT TH E ASSESSEE HAS INTRODUCED HIS OWN UNACCOUNTED MONEY IN THE NAME OF LONG TERM CAPITAL GAIN, THE MERE SUSPICION IS NOT ENOUGH TO DENY THE CLAIM OF THE AS SESSEE. THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF PRAMOD JAIN V S. DCIT (SUPRA) HAS DEALT WITH AN IDENTICAL ISSUE IN PARA 6 & 7 AS UNDER :- 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. THE ASSESSEE PURCHASES 800 EQU ITY SHARES M/S GRAVITY BARTER LTD. FOR A CONSIDERATION OF RS. 4 LA CS THE ASSESSEE HAS PRODUCED THE PURCHASE BILL OF THE SHARES PURCHASE F ROM M/S WINALL 11 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. VINIMAY PVT. LTD. WHICH SHOWS THAT THE ASSESSEE PUR CHASE 800 EQUITY SHARES HAVING FACE VALUE OF RS. 10/- EACH M/S GRAVI TY BARTER PVT. LTD. IN ALLOTS OF 400 EACH FOR A CONSIDERATION OF RS. 2 LACS EACH TOTAL AMOUNT TO RS. 4 LACS @ RS. 500 PER SHARES. THE PURCHASE PR ICE OF RS. 500 PER SHARE ITSELF SHOWS THAT IT WAS NOT A TRANSACTION OF PURCHASE OF PENNY STOCK. THESE SHARES WERE DULY REFLECTED IN THE BALA NCE SHEET AS 31.03.2011. THE PAYMENT OF THE PURCHASE CONSIDERATI ON WAS MADE BY THE ASSESSEE VIDE CHEQUE ON 17.05.2011 WHICH IS EVI DENT FROM THE BANK ACCOUNT OF THE ASSESSEE AT PAGE 40 OF THE PAP ER BOOK. IN THE MEAN TIME THE SAID M/S GRAVITY BARTER PVT. LTD. CHA NGED ITS STATUS FROM PRIVATE LIMITED TO A PUBLIC LIMITED AND FRESH CERTI FICATE WAS ISSUED BY THE REGISTRAR OF COMPANY ON 05.02.2011 WHICH IS PLA CED AT PAGE 43 OF THE PAPER BOOK. THEREFORE, THERE IS NO REASON TO DI SBELIEF THE FACT OF FRESH CERTIFICATE ISSUED BY THE REGISTRAR OF COMPAN IES ON 05.02.2011 AND HENCE, THE DATE MENTIONED IN THE ORDER OF THE H ONBLE KOLKATA HIGH COURT AS 18.04.2011 APPEARS TO BE TYPOGRAPHICA L MISTAKE. EVEN OTHERWISE THESE TWO DATES DO NOT HAVE ANY EFFECT ON THE GENUINENESS OF THE TRANSACTIONS OF PURCHASE OF EQUITY SHARES BY THE ASSESSEE OF M/S GRAVITY BARTER PVT. LTD. THE ASSESSEE THOUGH PRODUC ED ALL THE RELEVANT RECORDS AND EVIDENCES RIGHT FROM THE PURCHASE BILLS , CERTIFICATE ISSUED BY THE REGISTRAR ABOUT THE CHANGE OF NAME, THE COMM UNICATION BETWEEN THE ASSESSEE AND THE SELLER OF THE SHARES A ND THEREAFTER, THE AMALGAMATION OF M/S GRAVITY BARTER LTD. WITH M/S OA SIS CINE COMMUNICATION LTD. WHICH WAS DULY APPROVED BY THE H ONBLE HIGH COURT VIDE ORDER DATED 28.8.2011. THE ASSESSEE IN T HE MEAN TIME GOT THE PHYSICAL SHARE CERTIFICATE DEMATERIALIZED INTO DEMAT ACCOUNT ON 16.02.2012. THERE IS NO REASON TO DOUBT THE ALLOTME NT OF THE SHARES TO THE ASSESSEE AFTER AMALGAMATION TOOK PLACE BETWEEN M/S GRAVITY BARTER LTD. AND M/S OASIS CINE COMMUNICATION LTD. A ND SUBSEQUENT TO AMALGAMATION THE ASSESSEE WAS ALLOTTED SHARES OF M/ S OASIS CINE COMMUNICATION LTD. ON 04.02.2012. HENCE, THE ALLOTM ENT OF 35,200 12 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. EQUITY SHARES OF M/S OASIS CINE COMMUNICATION LTD. CANNOT BE DOUBTED OR DISPUTED AS THESE SHARES WERE ISSUED POST AMALGA MATION AND BY A LISTED COMPANY. IT IS ALSO NOT IN DISPUTE THAT THES E SHARES OF M/S OASIS CINE COMMUNICATION LTD. WERE ISSUED IN EXCHANGE OF THE SHARES HELD BY THE ASSESSEE OF M/S GRAVITY BARTER LTD. THEREFOR E, ONCE THE SHARES ISSUED BY M/S OASIS CINE COMMUNICATION LTD. CANNOT BE DOUBTED THEN THE HOLDING OF THE SHARES OF THE M/S GRAVITY BARTER LTD. BY THE ASSESSEE CORRESPONDINGLY CANNOT BE DOUBTED BECAUSE OF THE RE ASONS THAT THE SHARES OF M/S OASIS CINE COMMUNICATION LTD. COULD B E ALLOTTED ONLY IN EXCHANGE OF SHARES OF M/S GRAVITY BARTER LTD. THE H OLDING THE SHARES OF M/S GRAVITY BARTER LTD. AND THE ALLOTMENT OF SHA RES M/S OASIS CINE COMMUNICATION LTD. ARE DIRECTLY INTERCONNECTED. IN THE ABSENCE OF HOLDING OF SHARES M/S GRAVITY BARTER LTD. THE SHARE S OF THE M/S OASIS CINE COMMUNICATION LTD. COULD NOT BE ISSUED OR ALLO TTED TO THE ASSESSEE. THEREFORE, HOLDING OF THE SHARES BY THE A SSESSEE AT LEAST AT TIME OF AMALGAMATION TOOK PLACE AND SHARES OF THE M /S OASIS CINE COMMUNICATION LTD. ON 04.02.2012 CANNOT BE DOUBTED. MOREOVER, THESE SHARES WERE DEMATERIALIZED BY THE ASSESSEE IN THE DEMAT ACCOUNT, THEREFORE, ON THE DATE OF ALLOTMENT OF SHA RE OF M/S OASIS CINE COMMUNICATION LTD THE ASSESSEE WAS HOLDING THESE S HARES AND PRIOR TO THAT THE ASSESSEE WAS HOLDING THE SHARES OF M/S GRAVITY BARTER LTD. ON EXCHANGE OF THE SAME THE SHARES OF M/S OASIS CI NE COMMUNICATION LTD. WERE ISSUED TO THE ASSESSEE. THE ASSESSING OFF ICER HAS DOUBTED THE GENUINENESS OF THE TRANSACTIONS HOWEVER, ONCE T HE HOLDING OF SHARES OF THE ASSESSEE AT THE TIME OF THE SAME WERE ISSUED BY M/S OASIS CINE COMMUNICATION LTD. IS NOT IN DISPUTE THE N THE HOLDING OF SHARES OF M/S GRAVITY BARTER LTD. ALSO CANNOT BE DI SPUTE BECAUSE OF THE FACT THAT WITHOUT HOLDING OF THE SAME THE SHARES OF M/S OASIS CINE COMMUNICATION LTD. COULD NOT BE ISSUED TO THE ASSES SEE. ONCE, THE SHARES WERE HELD BY THE ASSESSEE THEN, THE QUESTION OF GENUINENESS OF THE TRANSACTION DOES NOT ARISE HOWEVER, THE PURCHAS E CONSIDERATION CAN 13 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. BE DOUBTED BY THE AO IF THE SHARES WERE CLAIMED TO HAVE BEEN PURCHASED AGAINST CONSIDERATION PAID IN CASH WHICH IS NOT IN CASE OF THE ASSESSEE. THE ASSESSEE HAS PAID PURCHASE CONSID ERATION THROUGH CHEQUE AND THEREFORE, EVEN IF THE SAID CONSIDERATIO N IS FOUND TO BE VERY LESS IN COMPARISON TO THE SALE PRICE AT THE TI ME OF SALE OF SHARES IN THE ABSENCE OF ANY MATERIAL OR OTHER FACTS DETECTED OR BROUGHT ON RECORD BY THE AO THAT THE ASSESSEE HAS BROUGHT BACK HIS OWN UNACCOUNTED MONEY IN THE SHAPE OF LONG TERM CAPITAL GAIN AND HAS USED THE SAME AS A DEVICE TO AVOID TAX, THE PURCHAS E CONSIDERATION PAID BY THE ASSESSEE CANNOT BE DOUBTED IN THE ABSEN CE OF ANY CORROBORATING EVIDENCE. THE ASSESSING OFFICER HAS N OT DISPUTED THAT THE FAIR MARKET VALUE OF THE SHARES OF M/S GRAVITY BARTER LTD. WAS MORE THAN THE PURCHASE PRICE CLAIMED BY THE ASSESSE E. IT MAY BE A CASE THAT ENSURING MERGER/AMALGAMATION OF THE SAID COMPANY WITH M/S OASIS CINE COMMUNICATION LTD. THE ASSESSEE MIGHT HA VE ANTICIPANT THE EXCEPTIONAL APPRECIATION IN THE SHARE PRICE DUE TO EXTRAORDINARY EVENT OF MERGER/ AMALGAMATION. HOWEVER, THE SAME CANNOT B E A REASON FOR DOUBTING GENUINENESS OF THE TRANSACTION IF THE MOTI VE OF PURCHASE OF THE SHARE IS TO EARN AN EXTRAORDINARY GAIN BECAUSE OF SOME INTERNAL INFORMATION AVAILABLE TO THE ASSESSEE. 7. IN CASE OF EQUITY SHARES M/S PARIDHI PROPERTIES LTD. THE ASSESSEE PURCHASE 50,000 EQUITY SHARE ON 26.03.2011 BY PAYING SHARE APPLICATION MONEY OF RS. 5 LACS WHICH IS DULY REFLE CTED IN THE BANK ACCOUNT OF THE ASSESSEE AS PAID ON 28.03.2011. THER EFORE, THE PAYMENT OF SHARE APPLICATION MONEY HAS BEEN DULY ES TABLISHED BY THE ASSESSEE THROUGH HIS BANK ACCOUNT FOR ALLOTMENT OF SHARES OF 50,000 EQUITY SHARES OF M/S PARIDHI PROPERTIES LTD. THE SH ARE ALLOTTED IN PRIVATE PLACEMENT AS PER OF RS. 10/- CANNOT BE TERM ED AS PENNY STOCK. THE AO DOUBTED THAT THE ENTIRE PROCESS OF APPLICATI ON AND ALLOTMENT OF SHARES AS IT HAVE BEEN COMPLETED WITHIN A SHORT DUR ATION OF 5 DAYS, WHICH IN THE OPINION OF THE AO IS NOT POSSIBLE IN O RDINARY COURSE. 14 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. HOWEVER, WHEN THE ASSESSEE HAS PRODUCED THE RECORD INCLUDING THE SHARE APPLICATION, PAYMENT OF SHARE APPLICATION MON EY, ALLOTMENT OF SHARE THEN MERELY BECAUSE OF A SHORT PERIOD OF TIME WILL NOT BE A SUFFICIENT REASON TO HOLD THAT THE TRANSACTION IS B OGUS. THE SHARES ALLOTTED TO THE ASSESSEE VIDE SHARE CERTIFICATE DAT ED 31.03.2011 WERE DEMATERIALIZED ON 21.10.2011, THEREFORE, ON THE DAT E OF DEMATERIALIZATION OF THE SHARES THE HOLDING OF THE SHARES OF THE ASSESSEE CANNOT BE DOUBTED AND HENCE THE ACQUISITIO N OF THE SHARES OF THE ASSESSEE CANNOT BE TREATED AS A BOGUS TRANSACTI ON. NOBODY CAN HAVE THE SHARES IN HIS OWN NAME IN DEMANT ACCOUNT W ITHOUT ACQUIRING OR ALLOTMENT THROUGH DUE PROCESS HENCE, EXCEPT THE PURCHASE CONSIDERATION PAID BY THE ASSESSEE HOLDING OF SHARE S CANNOT BE DOUBTED WHEN THE ASSESSEE HAS PRODUCED ALL THE RELE VANT RECORD OF ISSUING OF ALLOTMENT OF SHARES, PAYMENT OF SHARE AP PLICATION MONEY THROUGH BANK, SHARE CERTIFICATE AND DEMAT ACCOUNT S HOWING THE SHARES CREDITED IN THE DEMAT ACCOUNT OF THE ASSESSEE ON DE MATERIALIZATION. THE SAID COMPANY M/S PARIDHI PROPERTIES LTD. WAS SU BSEQUENTLY MERGED WITH M/S LUMINAIRE TECHNOLOGIES LTD. VIDE S CHEME APPROVED BY THE HONBLE BOMBAY HIGH COURT ORDER DATED 27.07. 2012. HENCE, THE ASSESSEE GOT ALLOTTED THE EQUITY SHARES OF M/S LUMI NAIRE TECHNOLOGIES LTD. AS PER SWAP RATIO APPROVED IN THE SCHEME AND C ONSEQUENTLY THE ASSESSEE WAS ALLOTTED 5 LACS SHARE OF RS. 1/- EACH ON M/S LUMINAIRE TECHNOLOGIES LTD. THE EVIDENCE PRODUCED BY THE ASSE SSEE LEAVE NO SCOPE OF ANY DOUBT ABOUT THE HOLDING OF THE SHARES BY THE ASSESSEE. WE FURTHER NOTE THAT THE DECISION OF THE AO HOLDING THE TRANSACTION AS BOGUS AND DENYING THE CLAIM OF LONG TERM CAPITAL GAIN UND ER SECTION 10(38) OF THE ACT IS BASED ON SUSPICION WITHOUT ANY MATERIAL EVID ENCE TO CONTROVERT OR DISPROVE THE EVIDENCE PRODUCED BY THE ASSESSEE. TH E ENQUIRY CONDUCTED BY THE ITO INVESTIGATION INDORE IS NOT A CONCLUSIVE FI NDING OF FACT THAT THE 15 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. TRANSACTION OF PURCHASE OF SHARES BY THE ASSESSEE I S BOGUS PARTICULARLY IN VIEW OF ADMITTED FACT THAT THESE SHARES WERE HELD BY THE ASSESSEE AND WERE DULY MATERIALIZED IN THE D-MAT ACCOUNT. THEREFORE, UNTI L AND UNLESS A FINDING IS GIVEN THAT THE SHARES WERE ACQUIRED BY THE ASSESSEE FROM THE PERSON OTHER THAN THE BROKER CLAIMED BY THE ASSESSEE, THE MERE S USPICION HOW SO EVER STRONG MAY BE, CANNOT BE A BASIS OF ADDITION OR DIS ALLOWANCE OF CLAIM. AS REGARDS THE STATEMENT RECORDED BY THE ITO INVESTIGA TION INDORE OF ONE SHRI MAHESH PANCHOLI, IT IS RECORDED BY THE AO THAT THE SAID PERSON WAS IN THE EMPLOYMENT ONLY FOR THE PAST FOUR YEARS AND FURTHER THE SAID WITNESS HAS NOT DENIED THE CONFIRMATION ISSUED BY THE BROKER, BUT H AS GIVEN A VAGUE STATEMENT OF HAVING ANY KNOWLEDGE OF SUCH TRANSACTI ON OF SHARES SOLD TO THE ASSESSEE. EVEN OTHERWISE, THESE ENQUIRIES WERE CON DUCTED AT INDORE AND THE STATEMENT WAS RECORDED AT THE SAME PLACE AND RATHER AT THE BACK OF THE ASSESSEE. THEREFORE, UNTIL AND UNLESS THESE WITNESS ES WERE PRESENT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS DENIED THE PROPER OPPORTUNITY OF CROSS EXAMINATION. MERELY SUPPLYING OF STATEMENT TO THE ASSESSEE AT THE FAG END OF THE ASSESSMENT PROCEEDINGS IS NOT SUFFICIENT TO MEET THE REQUIREMENT OF GIVING AN OPPORTUNITY TO CROSS EXAMINE THE WITNE SS WHEN THE WITNESS HIMSELF WAS NOT AVAILABLE AT THE PLACE. ACCORDINGL Y, IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AS DISCUSSED ABOVE AND FOLLOWING THE EARLIER DECISION OF THIS TRIBUNAL AS WELL AS VARIOUS DECISIONS RELIED U PON BY THE ASSESSEE, WE HOLD THAT THE DENIAL OF THE CLAIM ON THE BASIS OF SUSPIC ION WITHOUT ANY COGENT MATERIAL TO SHOW THAT THE ASSESSEE HAS BROUGHT BACK HIS OWN UNACCOUNTED INCOME IN THE SHAPE OF LONG TERM CAPITAL GAIN, THE SAID ACTION OF THE AO IS NOT SUSTAINABLE. ACCORDINGLY WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW QUA THIS ISSUE AND DELETE THE ADDITION MADE BY THE AO O N THIS ACCOUNT. ACCORDINGLY, WHEN THE FACTS AND CIRCUMSTANCES AS WE LL AS ALL THE MATERIAL RELIED UPON BY BOTH THE PARTIES ARE IDENTICAL, THEREFORE, IN VI EW OF THE FINDING OF THIS TRIBUNAL IN 16 ITA NO. 133/JP/2016 M/S. JVS FOOD PVT. LTD., JAIPUR. THE CASE OF PRAMOD KUMAR LODHA (SUPRA) VIDE EVEN DA TED ORDER, WE HOLD THAT THE ADDITION MADE BY THE AO BY TREATING THE LONG TERM C APITAL GAIN AS BOGUS IS NOT SUSTAINABLE AND ACCORDINGLY THE SAME IS DELETED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 16/07/2018 . SD/- SD/- HKKXPUN FOT; IKY JKWO (BHAGCHAND) ( VIJAY PAL RAO ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16/07/2018. DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-M/S. JVS FOODS PVT. LTD., JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT-THE DCIT CIRCLE-2, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 133/JP/2016} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR