Reeshu Goel, New Delhi V. ITO, Ward- 34(4), New Delhi

ITA 1691/DEL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8462 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2013-2014
• Appeal Filed On: 28-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: MANOJ PATWARI
• Keywords: Reopening of assessment; Share purchase agreement; Application of stay; Accommodation entries; Reassessment proceedings; Set aside
• Section: 69C; 142(1); 250; 147; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO.1691/DEL/2019 ASSESSMENT YEAR: 2013-14 REESHU GOEL, E-4, PHASE-1, E BLOCK, ASHOK VIHAR, NEW DELHI. VS. ITO, WARD-34(4), NEW DELHI. TAN/PAN: AITPG 3482D (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI MANOJ PATWARI, CA RESPONDENT BY: SHRI SURENDER PAL, SR.D.R. DATE OF HEARING: 30 07 2019 DATE OF PRONOUNCEMENT: 07 10 2019 O R D E R PER AMIT SHUKLA, JM: THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 26.11.2018, PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-XII, NEW DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.147/143(3) FOR THE ASSESSMENT YEAR 2013-14. 2. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS C HALLENGED, FIRSTLY, THE VALIDITY OF REOPENING U/S.148 ON THE G ROUND THAT LD. ASSESSING OFFICER HAS NOT DISPOSED OF THE OBJEC TION RAISED BY THE ASSESSEE AGAINST NOTICE ISSUED U/S.148; SECO NDLY, ADDITION OF RS.1,77,24,158 MADE BY THE ASSESSING OF FICER ON ACCOUNT OF CLAIM OF LONG TERM CAPITAL GAIN ARISING FROM SALE I.T.A. NO.1691/DEL/2019 2 OF SHARES OF M/S. CCL INTERNATIONAL LTD. AS SHAM TR ANSACTION TO ADDED AS UNDISCLOSED INCOME U/S.68 OF THE ACT; A ND LASTLY, ADDITION OF RS.1,77,251/- MADE UNDER SECTION 69C ON THE GROUND THAT CASH COMMISSION MUST HAVE BEEN PAID @ 1 % ON THE ALLEGED BOGUS LONG TERM CAPITAL GAIN. 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE HAS APP LIED FOR 50,000 SHARES OF M/S. AAR INFRASTRUCTURE LTD. FOR T HE FACE VALUE OF RS.10/- PER SHARE AND PAID CONSIDERATION O F RS.5,00,000/- VIDE CHEQUE NO. 169799 DATED 13.01.20 11. THE ASSESSEE WAS ALLOTTED 50,000 EQUITY SHARES ON 17.2. 2011. AFTER RECEIVING THE ALLOTMENT LETTER, ALL THE SHARE WERE DEMATERIALIZED BY THE ASSESSEE IN HER DEMAT ACCOUNT ON 26.4.2011. THEREAFTER, M/S. AAR INFRASTRUCTURE LTD. GOT AMALGAMATED WITH M/S. CCL INTERNATIONAL LTD. AND AC CORDING TO THE AMALGAMATION SCHEME, THE ASSESSEE RECEIVED 1 ,25,000 SHARES OF M/S. CCL INTERNATIONAL LTD., IN THE PROPO RTION OF 250 EQUITY SHARES OF RS.2 PER SHARE AND 100 EQUITY SHARES OF RS.10 PER SHARE. THESE SHARES WHICH WERE ALLOTTED O N 17.2.2011 WERE SOLD FOR RS.1,82,76,483 BETWEEN 29.0 8.2012 TO 10.10.2012. ACCORDINGLY, LONG TERM CAPITAL GAIN OF RS.1,77,25,158/- WAS CLAIMED IN THE RETURN OF INCOM E FILED FOR THE ASSESSMENT YEAR 2013-14. THE CASE WAS REOPENED U/S.147 ON THE GROUND THAT INCOME OF RS.1,82,76,483 /- HAS ESCAPED ASSESSMENT FOR FAILURE ON THE PART OF THE A SSESSEE TO EXPLAIN THE SOURCE OF DEPOSIT. IN RESPONSE TO THE N OTICE U/S 148 ISSUED ON 11.08.2016 AND NOTICE U/S 142(1) DATE D 29.11.2016 BY THE AO, THE ASSESSEE HAS FILED DETAIL THE I.T.A. NO.1691/DEL/2019 3 OBJECTIONS BEFORE THE ASSESSING OFFICER VIDE LETTER DATED 23.05.2017. HOWEVER, THE SAID OBJECTIONS HAVE NEITHE R BEEN DISPOSED OFF BY THE ASSESSING OFFICER NOR IT HAS BE EN DISCUSSED OR DEALT WITH IN THE ASSESSMENT ORDER. TH E CIT (A), BEFORE WHOM THIS ISSUE WAS RAISED, HAS BEEN DISMISS ED BY HIM ON THE GROUND THAT NO SUCH OBJECTION WAS RAISED. 4. BEFORE US, LD. COUNSEL FOR THE ASSESSEE, MR. MAN OJ PATWARI, HAD FILED A COPY OF RTI APPLICATION FILED BEFORE THE ASSESSING OFFICER/ INCOME TAX DEPARTMENT SEEKING CE RTIFIED COPIES OF OBJECTIONS FILED BY THE ASSESSEE BEFORE T HE ASSESSING OFFICER AGAINST THE REOPENING OF ASSESSMENT. IN RES PONSE, THE ASSESSING OFFICER HAS PROVIDED THE COPY OF OBJECTIO NS AS AVAILABLE ON RECORD AND IT HAS BEEN CONFIRMED BY TH E DEPARTMENT THAT SUCH OBJECTION WAS FILED. HE POINTE D OUT THAT LD. CIT (A) HAS WRONGLY DISMISSED THE SAID GROUND B Y DOUBTING THAT SUCH AN OBJECTION HAS NEVER FILED BEF ORE THE ASSESSING OFFICER. THIS FINDING OF THE LD. CIT (A) IS ERRONEOUS IN THE WAKE OF THE COPY OF OBJECTIONS FILED BEFORE THE ASSESSING OFFICER WHICH HAS BEEN PLACED IN THE PAPER BOOK FRO M PAGES 4 TO 16, AND ALSO THE ASSESSING OFFICER HIMSELF HAS N OW ACKNOWLEDGED THAT SAME WAS FILED BY THE ASSESSEE. T HUS, HE SUBMITTED THAT ASSESSING OFFICER HAS FAILED IN HIS STATUTORY DUTY TO DISPOSE OFF THE OBJECTIONS BY WAY OF COMPRE HENSIVE ORDER, WHICH IS IN CLEAR CUT VIOLATION OF LAW LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. V. ITO (2003) 259 ITR 19 (SC) . HE SUBMITTED THAT SUCH A NON-DISPOSAL OF OBJECTION LEADS TO QUAS HING OF THE I.T.A. NO.1691/DEL/2019 4 ENTIRE PROCEEDINGS U/S.147. IN SUPPORT, HE STRONGLY RELIED UPON THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF VISHWANATH ENGINEERS VS. ACIT, (2013) 352 ITR 549 (GUJ.); AND ALSO RELIED UPON THE JUDGMENT OF ITAT DELHI BEN CH IN THE CASE OF SHRI AMAN SHARMA VS. ASST.CIT, IN ITA NO.7026/DEL/2014 . HE FURTHER RELIED UPON THE JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF KSS PETRON PVT. LTD. VS. ITO, IN ITA NO.224 OF 2014 , WHEREIN THE HONBLE HIGH COURT UPHELD THE QUASHING OF THE ASSESSMENT PA SSED IN THE VIOLATION OF LAW LAID DOWN BY THE HONBLE SUPRE ME COURT IN THE CASE OF G.K.N. DRIVESHAFT (SUPRA) . LASTLY, HE STRONGLY RELIED UPON THE JUDGMENT OF HONBLE JURISDICTIONAL DELHI HIGH COURT JUDGEMENT IN THE CASE OF PCIT VS. TUPPERWARE INDIA LTD., (2016) 284 CTR 0068 (DEL) 5. ON THE OTHER HAND, LD. DR RELIED UPON THE JUDGMEN T OF HONBLE MADRAS HIGH COURT IN THE CASE OF HOME FINDERS HOUSING LTD. V. ITO (2018) 404 ITR 611 (MAD.), WHEREIN THE HONBLE HIGH COURT HAS HELD THAT ASSESSING OFFI CER IS THOUGH BOUND TO DISPOSE OF THE OBJECTION BY PASSING A SPEAKING ORDER, BUT ASSESSMENT CANNOT BE QUASHED AN D MATTER SHOULD BE SENT BACK TO THE ASSESSING OFFICER TO DISPOSE OF THE OBJECTIONS. THUS, IN THIS CASE ALSO MATTER S HOULD BE RESTORED TO THE ASSESSING OFFICER. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PER USED THE RELEVANT MATERIAL PLACED ON RECORD ON THE VALID ITY OF REOPENING CHALLENGED BY THE ASSESSEE ON THE GROUND THAT I.T.A. NO.1691/DEL/2019 5 ASSESSING OFFICER HAS NOT DISPOSED OFF THE OBJECTIO NS FILED IN RESPONSE TO NOTICE U/S.148 IN VIEW OF PRINCIPLE LAI D DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (SUPRA) . FROM THE RECORDS, IT IS CLEARLY BORNE OUT THAT AS SESSEE DID FILED A DETAILED OBJECTIONS BEFORE THE ASSESSIN G OFFICER VIDE LETTER DATED 23.05.2017 CHALLENGING THE VALIDITY OF REOPENING U/S 147/148 ON VARIOUS COUNTS. SUCH AN OBJECTION FI LED BY THE ASSESSEE, ADMITTEDLY HAS NOT BEEN DISPOSED OFF BY THE ASSESSING OFFICER EITHER BY WAY OF ANY SEPARATE ORD ER OR EVEN IN THE IMPUGNED ASSESSMENT ORDER. IN FACT ENTIRE AS SESSMENT ORDER IS SILENT ON THIS ISSUE. THUS, THERE IS A GRO SS VIOLATION OF THE PRINCIPLE OF THE LAW LAID DOWN BY THE HONBLE A PEX COURT IN CASE OF GKN DRIVESHAFTS (SUPRA) , WHEREBY THE ASSESSING OFFICER IS BOUND TO DISCLOSE THE REASONS FOR RE-A SSESSMENT WITHIN REASONABLE TIME AND ASSESSEE IS ENTITLED TO RAISE OBJECTIONS IF ANY; AND IF SUCH OBJECTIONS HAS BEEN FILED, THEN AO IS BOUND TO PASS A SPEAKING ORDER DEALING WITH T HE OBJECTIONS BEFORE PROCEEDING THE REASSESSMENT IN TE RMS OF THE NOTICE GIVEN EARLIER. AS POINTED OUT BY THE LD. COU NSEL FOR THE ASSESSEE, HONBLE GUJARAT HIGH COURT AND HONBLE BO MBAY HIGH COURT HAVE COME DOWN VERY HEAVILY ON SUCH NON- DISPOSAL OF THE OBJECTIONS BY THE ASSESSING OFFICER AND HAVE GONE AHEAD TO QUASH SUCH REASSESSMENT PROCEEDINGS A ND THE ASSESSMENT ORDER ITSELF. THE HONBLE DELHI HIGH COU RT IN THE CASE OF PCIT VS. TUPPERWARE INDIA PVT. LTD. (SUPRA) HAD ALSO QUASHED SUCH AN ASSESSMENT ORDER WHERE ASSESSI NG I.T.A. NO.1691/DEL/2019 6 OFFICER HAS FAILED TO DISPOSE OFF THE OBJECTIONS FI LED BY THE ASSESSEE, AFTER OBSERVING AND HOLDING AS UNDER: 5. APPARENTLY, THE ASSESSEE DID RAISE AN OBJECTION TO THE ORDER OF THE AO REOPENING THE ASSESSMENT. IN THE ORDER DATED 28T H JANUARY 2011 ALLOWING THE ASSESSEE'S APPEAL, THE COMMISSIONER OF INCOME TAX (APPEALS) ['CIT (A)'] NOTED THAT THE ASSESSEE HAD I NDEED FILED OBJECTIONS TO THE REOPENING OF THE ASSESSMENT BY IT S LETTER DATED 9TH AUGUST 2006. IN THE REMAND REPORT DATED 20TH DECEMB ER 2010, THE AO QUOTED A PARAGRAPH FROM THE ORDER SHEET WHICH ST ATED THAT THE AFOREMENTIONED LETTER DATED 9TH AUGUST 2006 HAD BEE N HANDED OVER TO THE AO AND THAT THE AO HAD SOUGHT SOME MORE INFO RMATION WHICH THE ASSESSEE HAD NOT FILED. THE CIT (A) ACCORDINGLY HELD THAT BY STATING THAT NO OBJECTIONS HAD BEEN FILED, THE AO H AD 'VERY CONVENIENTLY DISREGARDED THE GUIDELINES' LAID DOWN BY THE SUPREME COURT IN GKN DRIVESHAFTS (INDIA) LTD. V. ITO [2003] 259 ITR 19/[2002] 125 TAXMAN 963. THE CIT (A), THEREFORE, AGREED WITH THE ASSESSEE THAT SINCE THE PROCEDURE LAID DOWN BY THE SC IN THE AFOREMENTIONED DECISION WAS MANDATORY, THE AO HAD IN FACT NOT DISP OSED OF THE OBJECTIONS BY A SPEAKING ORDER. NEVERTHELESS, THE C IT (A) HELD THAT THE SAID DEFECT 'DOES NOT MAKE THE ASSESSMENT ORDER ILL EGAL AND HENCE IT CANNOT BE QUASHED. IT IS A TECHNICAL MISTAKE WHICH IS CURABLE.' 6. THE COURT IS OF THE CONSIDERED VIEW THAT AFTER HAVI NG CORRECTLY UNDERSTOOD THE DECISION OF THE SUPREME CO URT IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA) AS MANDATORILY REQ UIRING THE AO TO COMPLY WITH THE PROCEDURE LAID DOWN THEREIN AND TO DISPOSE OF THE OBJECTIONS TO THE REOPENING ORDER WITH A SPE AKING ORDER, THE CIT (A) COMMITTED AN ERROR IN NOT QUASHING THE REOPENING ORDER AND THE CONSEQUENT ASSESSMENT . XXX XXXXX XXXX XXXX XXXX XXXX XXXX I.T.A. NO.1691/DEL/2019 7 9. CONSEQUENTLY, FOR BOTH THE AFOREMENTIONED REASON S, VIZ., THAT THERE WAS A FAILURE BY THE AO TO COMPLY WITH T HE MANDATORY REQUIREMENT OF DISPOSING OF THE OBJECTION S OF THE ASSESSEE TO THE REOPENING IN TERMS OF THE LAW EXPLA INED BY THE SUPREME COURT IN G.K.N. DRIVESHAFTS (INDIA) LTD. (S UPRA) AS WELL AS ON ACCOUNT OF THE FAILURE OF THE REVENUE TO CHAL LENGE BEFORE THE ITAT THE ORDER OF THE CIT (A) DELETING ON MERITS TH E DISALLOWANCE MADE BY THE AO OF THE MANAGEMENT SERVICE FEE CONSEQUENT UPON REOPENING OF THE ASSESSMENT, THERE APPEARS TO BE NO NEED TO E XAMINE THE ISSUE PROJECTED BY THE REVENUE IN THIS APPEAL VIZ., THE J USTIFICATION FOR RE- OPENING THE ASSESSMENT UNDER SECTION 147/148 OF THE ACT. 7. IT HAS COME TO OUR NOTICE THAT IN A RECENT JUDGM ENT OF HONBLE DELHI HIGH COURT IN THE CASE OF SURENDER KUMAR JAIN VS. PCIT IN W.P. (C) NO.593/2019 AT CM NO. 20670/2019, VIDE JUDGMENT AND ORDER DATED 29.07.201 9 HAS OBSERVED AND HELD AS UNDER: 1. ON 18 TH MARCH, 2019, THE FOLLOWING ORDER WAS PASSED BY THIS COURT: THE MATTER HAS BEEN LISTED BEFORE THIS COURT AS TH E DB-11 HAS NOT ASSEMBLED TODAY. LEARNED COUNSEL FOR THE PETITIONER SUBMITS THAT THE ASSESSMENT FOR THE YEAR 2011-2012 PERTAINING TO THE PETITIONER HAS BEEN REOPENED. WHILE THE REASONS TO BELIEVE HAVE BEEN SERVED UPON THE PETITIONER, BUT BEFORE THE OBJECTIONS COULD BE DECIDED, A FINAL ORDER HAS BEEN PASSED. RELIANCE HAS BEEN PLACED ON VARIOUS JUDGMEN TS OF THIS COURT, INCLUDING THE JUDGMENT PASSED IN THE CASE OF SMT. KAMLESH SHARMA V. B.L. MEENA, INCOME-TAX OFFICER AND OTHERS , REPORTED AT [2006] 287 1TR 337(DEL). NOTICE TO SHOW CAUSE AS TO WHY THE PETITION BE NOT ADMITTED. NOTICE IN THE STAY APPLICATION AS WELL. COUNSEL FOR THE RE SPONDENT ENTERS I.T.A. NO.1691/DEL/2019 8 APPEARANCE. HE SUBMITS THAT THE SUBMISSION SOUGHT T O BE URGED, IN FACT, IS NOT AN ABSOLUTE RULE, LIE SUBMITS THAT THE REASONS TO BELIEVE HAVE ALREADY BEEN SUPPLIED TO THE PETITIONER. HE SE EKS TIME TO FILE REPLY. LIST BEFORE THE ROSTER BENCH ON 10.04.2019. TILL THE NEXT DATE OF HEARING, NO COERCIVE ACTION S HALL BE TAKEN AGAINST THE PETITIONER. 2. THE SHORT POINT INVOLVED IN THE PRESENT PETITIO N IS WHETHER THE ASSESSING OFFICER (AO) COULD HAVE PROCEEDED TO FINA LISE THE REASSESSMENT PURSUANT TO NOTICES ISSUED UNDER SECTI ON 147/148 OF THE INCOME TAX ACT, 1961 (THE ACT) WITHOUT THE PR OCEDURE LAID DOWN BY THE SUPREME COURT IN GKN DRIVESHAFTS (INDIA) LTD . V. ITO (2003) 259 ITR 19 (SC) BEING COMPLIED WITH? 3. THIS COURT HAS EMPHASISED IN SEVERAL DECISIONS THAT THE PROCEDURE OUTLINED BY THE SUPREME COURT IN GKN DRIV ESHAFTS (INDIA) LTD. (SUPRA) IS SACROSANCT. IN OTHER WORDS, WHERE IN RESPONSE TO A NOTICE ISSUED UNDER SECTION 147 BY TH E AO, THE ASSESSEE SEEKS THE REASONS TO BELIEVE THAT PROMPTED THE RE- OPENING, AND FILES OBJECTIONS THERETO, THOSE OBJECT IONS HAVE TO BE CONSIDERED ON THEIR MERITS AND ONLY A REASONED O RDER HAS TO BE PASSED THEREON BY THE AO. IMPORTANTLY, THIS HAS TO HAPPEN PRIOR TO THE AO PROCEEDING WITH THE RE-ASSESSMENT. 4. IN SABH INFRASTRUCTURE LTD. V. ACIT, (2017) 398 ITR 198 (DEL), IN SIMILAR CIRCUMSTANCES, THIS COURT OBSERVED THAT HEL D AS UNDER: 19. BEFORE PARTING WITH THE CASE, THE COURT WOULD LIKE TO OBSERVE THAT ON A ROUTINE BASIS, A LARGE NUMBER OF WRIT PET ITIONS ARE FILED CHALLENGING THE REOPENING OF ASSESSMENTS BY THE REV ENUE UNDER SECTIONS 147AND 148 OF THE ACT AND DESPITE NUMEROUS JUDGMENTS ON THIS ISSUE, THE SAME ERRORS ARE REPEATED BY THE CONCERNED REVENUE AUTHORITIES. IN THIS BACKGROUND, THE COURT WOULD LIKE THE I.T.A. NO.1691/DEL/2019 9 REVENUE TO ADHERE TO THE FOLLOWING GUIDELINES IN MA TTERS OF REOPENING OF ASSESSMENTS: (IV) THE EXERCISE OF CONSIDERING THE ASSESSEES OBJ ECTIONS TO THE REOPENING OF ASSESSMENT IS NOT A MECHANICAL RITUAL. IT IS A QUASI- JUDICIAL FUNCTION. THE ORDER DISPOSING OF THE OBJEC TIONS SHOULD DEAL WITH EACH OBJECTION AND GIVE PROPER REASONS FOR THE CONCLUSION. NO ATTEMPT SHOULD BE MADE TO ADD TO THE REASONS FOR RE OPENING OF THE ASSESSMENT BEYOND WHAT HAS ALREADY BE DISCLOSED. 5. IN THE PRESENT CASE, THE AO HAS NOT CHOSEN TO D ISPOSE OF THE OBJECTIONS, FILED BY THE PETITIONER AGAINST THE REO PENING OF THE ASSESSMENT BUT HAS PROCEEDED TO THE STAGE OF PASSIN G THE REASSESSMENT ORDER ITSELF. 6. IN ALMOST AN IDENTICAL FACT SITUATION IN SMT. K AMLESH SHANNA W B.L. MEENA, INCOME-TAX OFFICER (SUPRA), WHERE THE AO DID NOT PASS ANY SPEAKING ORDER BUT STRAIGHTAWAY PASSED AN ASSESSMENT ORDER, AND SIMULTANEOUSLY REJECTED THE CONTENTION O F THE PETITIONER, THIS COURT OBSERVED: 3. WE ARE OF THE OPINION THAT IN VIEW OF THE LANGU AGE OF THE SUPREME COURT IN GKN DRIVES HAFTS [2003] 259 ITR 19 THE ASSESSING OFFICER SHOULD HAVE REJECTED THE OBJECTIO NS, IF HE THOUGHT IT APPROPRIATE TO DO SO, BEFORE PASSING THE FINAL O RDER AND NOT SIMULTANEOUSLY. 4. THIS POSITION WAS REITERATED BY THIS COURT IN S ITA WORLD TRAVELS (INDIA) LTD. V. CIT (2004) 140 TAXMAN 381 ( DEL). 5. WE CANNOT APPRECIATE HOW, IN SPITE OF THE CLEAR LANGUAGE USED BY THE SUPREME COURT AS WELL AS THIS COURT, TH E ASSESSING OFFICER DID NOT COMPLY WITH THE REQUIREMENT OF LAW. 7. THIS COURT HAS, THEREFORE, NO HESITATION IN S ETTING ASIDE REASSESSMENT ORDER DATED 29TH DECEMBER, 2018 FOR TH E ASSESSMENT YEAR AY 2011-12. CONSEQUENTLY, A DIRECTION IS ISSUE D TO THE AO TO ONCE AGAIN TAKE UP FOR CONSIDERATION, THE PETITIONE RS OBJECTIONS TO THE I.T.A. NO.1691/DEL/2019 10 REOPENING OF THE ASSESSMENT FOR THE AFOREMENTIONED AY AND DISPOSE OF THOSE OBJECTIONS BY A REASONED ORDER NOT LATER THAN FOUR WEEKS FROM TODAY. THE SAID ORDER SHALL BE COMMUNICATED TO THE PETITIONER NOT LATER ONE WEEK THEREAFTER. 8. THEREAFTER, THE AO WILL PROCEED IN ACCORDANCE WITH LAW AS FAR AS THE REASSESSMENT PROCEEDINGS ARE CONCERNED. 9. IT WILL BE OPEN TO THE PETITIONER TO SEEK APPR OPRIATE REMEDIES IF HIS OBJECTIONS TO THE REOPENING OF THE ASSESSMENT ARE R EJECTED BY THE AO. 10. THE WRIT PETITION AND APPLICATION ARE DISPOSED OF IN THE ABOVE TERMS. 7. THOUGH THE HONBLE JURISDICTIONAL HIGH COURT IN THE WRIT JURISDICTION HAS SET ASIDE THE RE-ASSESSMENT ORDER W ITH A DIRECTION TO THE ASSESSING OFFICER TO AGAIN TAKE UP THE OBJECTION AND DISPOSE OF THE OBJECTIONS BY PASSING A REASONED ORDER AND ALSO GIVE LIBERTY TO THE PETITIONER/ASSES SEE TO SEEK APPROPRIATE REMEDIES WITH THE OBJECTION WHICH HAS B EEN REJECTED BY THE ASSESSING OFFICER. NOW HERE IN THIS CASE, THE ASSESSING OFFICER HAD PASSED THE ASSESSMENT ORDER W ITHOUT ADHERING TO THE PROCESS OF LAW AND NOT ONLY THAT, T HE GROUND RAISED BEFORE THE LD. CIT(A) ON THIS POINT HAS BEEN REJECTED ON THE ERRONEOUS PRESUMPTION THAT SUCH AN OBJECTION HA S NOT BEEN FILED WHICH FACT IS FOUND TO BE NOT CORRECT. T HUS, HERE THE STAGE OF FIRST APPEAL HAS ALSO BEEN CROSSED AND ASS ESSEES OBJECTION REMAINS INDISPOSED OFF. IF A LAW MANDATES THE ASSESSING OFFICER TO ACT IN A SPECIFIC MANNER ESPEC IALLY IN THE CASE OF JURISDICTIONAL ISSUE RELATING TO SECTION 147 , THEN HE HAS TO ADHERE TO THE MANDATE OF THE LAW; AND IF THE RE IS ANY VIOLATION OF SUCH LAW, THE CONSEQUENCE IS FATAL TO THE ENTIRE I.T.A. NO.1691/DEL/2019 11 REASSESSMENT PROCEEDINGS AND RESULTS INTO QUASHING OF THE ASSESSMENT ITSELF. THE ASSESSEE HERE IN THIS CASE W AS DENIED REMEDY TO CHALLENGE THE ACTION U/S 147/148, HAD THE OBJECTIONS BEEN DISPOSED OFF ADVERSELY TO THE ASSES SEE. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF PCIT VS. TUPPERWARE INDIA (SUPRA) AS NOTED ABOVE HAS CLEARLY OPINED THAT SUCH A FAILURE TO COMPLY THE LAW LAID DOWN BY THE HONBLE SUPREME COURT SHOULD HAVE RESULTED IN QUASHING OF T HE REASSESSMENT. ACCORDINGLY, IF THE ABOVE PRINCIPLE A ND THE RATIO LAID DOWN BY THE HONBLE HIGH COURTS CITED ABOVE AN D BY THE HONBLE JURISDICTIONAL HIGH COURT IS TO BE FOLLOWED , THEN WE ARE OF THE OPINION THAT ON THIS GROUND ALONE THE IM PUGNED RE- ASSESSMENT ORDER IS LIABLE TO BE QUASHED AND AT THI S STAGE WE ARE NOT INCLINED TO SET ASIDE THIS ISSUE TO ASSESSI NG OFFICER FOR DECIDING THIS MATTER WHEN SUBSTANTIAL TIME HAS LAPS ED AND TWO STAGES HAVE BEEN CROSSED. BE THAT AS MAY BE, WE ARE PROCEEDING TO DECIDE THE ISSUE ON MERITS AS ARGUED BY THE PARTIES. 8. ON MERITS OF THE ADDITION, WE FIND THAT LD. ASS ESSING OFFICER, FIRST OF ALL NOTED THAT M/S. CCL INTERNATI ONAL LTD. IS TRADED IN BOMBAY STOCK EXCHANGE UNDER THE SECURITY ID M/S. CCL INTERNATIONAL WITH THE SECURITY CODE NO. 531900 . HE HAS INCORPORATED THE FINANCIALS OF THE COMPANY AS PER T HE BALANCE SHEET AVAILABLE IN THE PUBLIC DOMAIN WHICH HAS BEEN INCORPORATED IN PARAGRAPH 2 OF THE ORDER FROM PAGES 2 TO 5 OF THE ASSESSMENT ORDER. ASSESSING OFFICER OBSERVED TH AT SHARES OF M/S. AAR INFRASTRUCTURE LTD. WERE LATER ON MERGE D IN M/S. I.T.A. NO.1691/DEL/2019 12 CCL INTERNATIONAL LTD. AND THEN ON 09.02.2012 THESE SHARES WERE ALLOTTED TO VARIOUS BENEFICIARIES. HOWEVER, FO R MAKING SUCH AN OBSERVATION, NO SUCH INFORMATION OR MATERIA L HAS BEEN STATED IN THE ASSESSMENT ORDER. THEREAFTER, HE HAS NOTED THAT TRADING IN SHARES OF M/S. CCL INTERNATIONAL WA S SUSPENDED BY BSE IN THE YEAR 2010 AND IT HAS BEEN R EVOKED ALSO IN THE SAME YEAR. HE HAS ALSO ANALYZED THE EFF ECT OF ALLOTMENT OF SHARES BY M/S. AAR INFRASTRUCTURE JUST BEFORE THE AMALGAMATION DATE AND THE PRE-SPLIT CLOSING PRI CE IN STOCK EXCHANGE AND HOW THE SPLIT PRICE OF THE SHARE KEPT ON RISING JUST IN A MATTER OF FEW MONTHS. HE HAS ALSO ANALYZED THE RISE OF THE SCRIP FROM RS.11.10 PER SHARE TO RS.129 IN T HE PERIOD OF 6 MONTHS IN THE YEAR 2010, I.E., BETWEEN 6.02.2010 TO 23.08.2010 DURING WHICH THE PRICE OF THE SCRIP HAD RISEN FROM RS.15/- TO RS.157/- AND IT KEPT ON INCREASING. HE H AS EVEN TABULATED THE HISTORY OF PRICE RISE, VOLUME OF TRAN SACTION UNDERTAKEN IN STOCK EXCHANGE, AVERAGE PRICE OF EACH DATE WHEN SHARES WERE TRADED IN THE BSE AND THE CLOSING RATE, RIGHT FROM THE PERIOD 06.02.2010 TO 25.11.2014, I.E ., FOR ALMOST 5 YEARS AND FOUND THAT THE HIGHEST PRICE WEN T UP TO RS.630/-. THUS, HE CONCLUDED THAT THERE WAS INCREAS E OF 1160% IN JUST ONE YEAR. 9. AFTER NARRATING THE HISTORY OF PRICE QUOTATION I N THE STOCK EXCHANGE, ASSESSING OFFICER HAS MADE REFERENCE TO T HE GENERAL MODUS OPERANDI ADOPTED BY VARIOUS BROKERS WHICH WAS UNEARTHED DURING THE INVESTIGATION CARRIED OUT BY K OLKATA DIRECTOR OF INVESTIGATION. HE THEN OBSERVES THAT FI NANCIAL I.T.A. NO.1691/DEL/2019 13 STATUS OF M/S. CCL INTERNATIONAL WAS NOT VERY SOUND AND THE SAID COMPANY WAS NOT ENGAGED INTO ANY SUBSTANTIAL A CTIVITY. BUT STILL THE SHARE PRICE KEPT ON RISING WHICH PROV ES THAT PRICES WERE RIGGED IN THE STOCK EXCHANGE THROUGH MANIPULATION. FURTHER, VARIOUS BROKERS WHOSE STATEM ENTS WERE RECORDED BY THE INVESTIGATION WING, IT WAS FOU ND THAT THE SHARES OF THE CCL INTERNATIONAL WERE FACILITATED FO R PROVIDING BOGUS ENTRY TO VARIOUS PERSONS. AFTER DETAILED DISC USSION AND DISCUSSING VARIOUS CASE LAWS, ASSESSING OFFICER HEL D THAT AMOUNT CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE OUT OF PURPORTED SALE OF SHARES IS IN THE NATURE OF BOGUS LONG TERM CAPITAL GAIN WHICH IS TAXABLE U/S.68. HOWEVER HE HA S TAXED ONLY NET LONG TERM CAPITAL GAIN AND NOT THE ENTIRE AMOUNT. HE FURTHER MADE DISALLOWANCE OF COMMISSION @ 1% U/S.69 C ON NOTIONAL BASIS ON ACCOUNT OF ALLEGED COMMISSION WHI CH MUST HAVE BEEN PAID TO SUCH ACCOMMODATION ENTRY. 10. LD. CIT (A) IN HIS EX-PARTE ORDER HAS CONFIRMED THE SAID REASONING AND THE ORDER OF THE ASSESSING OFFICER. 11. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE DRE W OUR ATTENTION TO THE SCRIP-WISE CHRONOLOGY OF EVENTS WH ICH IS AS UNDER: SHARE SCRIPT DESCRIPTION DESCRIPTION A.Y. 2013-14 M/S. CCL INTERNATIONAL LIMITED (AAR INFRASTRUCTURE LTD.) NO. OF SHARES 50000 ACKNOWLEDGMENT RECEIPT AVAILABLE SHARE ALLOTMENT LETTER 17.02.2011 I.T.A. NO.1691/DEL/2019 14 SHARE CERTIFICATE N.A. BANK STATEMENT 13.01.2011-500000 (PAID) SUBDIVISION OF SHARES 18.06.2012 DEMATERIALIZATION REQUEST FILED ON 26.04.2011 BROKER STATEMENT AVAILABLE CONTRACT NOTES SALE OF 125000 SHARES FROM 31.08.2012-31.10.2012 SALE CONSIDERATION 1,82,26,175 LONG TERM CAPITAL GAIN CLAIMED 1,77,25,158 TOTAL LTCG CLAIMED 1,77,25,158 PERIOD OF HOLDING 20 MONTHS TURNOVER AT THE TIME OF SALE (IN RS.) 78.89 CR TURNOVER AT THE TIME OF PURCHASE (IN RS.) 53.94 CR PROFIT BEFORE TAX AT THE TIME OF SALE (IN RS.) 2.30 CR PROFIT BEFORE TAX AT THE TIME OF PURCHASE (IN RS.) 1.14 CR 12. AFTER GIVING THE AFORESAID DETAILS OF PURCHASE OF SHARES, DEMATERIALIZATION, HOLDING PERIOD AND SALE, HE SUBM ITTED THAT ALL THE SHARES WERE SOLD THROUGH STOCK EXCHANGE WIT H ENTIRE PARTICULARS AND AFTER PAYING STT THROUGH RECOGNIZED STOCK BROKER, M/S. INDIANIESH SECURITIES PVT. LTD. AND TH E SALE CONSIDERATION WAS RECEIVED IN THE BANK ACCOUNT REFL ECTED THE SALES PROCEEDS. HE FURTHER POINTED OUT THAT THE SEB I HAD NEITHER ISSUED ANY PROHIBITION FOR DEALING IN SHARE OF CCL LTD. NOR THE TRADING OF SHARES OF M/S. CCL INTERNATIONAL WAS EVER SUSPENDED BY THE SEBI, ATLEAST NO CORROBORATIVE EVI DENCE WAS BROUGHT ON RECORD TO SHOW THAT M/S. CCL INTERNATION AL LTD. WAS DE-LISTED FROM SEBI. HE SUBMITTED THAT WHEN ASS ESSEE I.T.A. NO.1691/DEL/2019 15 TRANSACTED IN THE SHARES IT WAS LISTED IN STOCK EXC HANGE AND WERE TRADED FREELY IN HUGE VOLUME AND IT IS STILL B EING TRADED IN PRESENT ALSO. IN SUPPORT, HE HAS ALSO GIVEN THE PROOF OF LIVE SHARE TRADING AS ON DATE. REGARDING FINANCIAL STATU S WHICH HAS BEEN ADVERSELY COMMENTED BY THE ASSESSING OFFIC ER HE SUBMITTED THE FOLLOWING FINANCIAL POSITION OF THE C OMPANY AVAILABLE FROM THE RECORDS: M/S CCL INTERNATIONAL LIMITED TOTAL REVENUE (IN CR.) PBT (IN CR) MAR 07 39.15 0.28 MAR 08 46.47 0.57 MAR 09 49.63 0.23 MAR 10 55.24 1.21 MAR 11 53.94 1.14 MAR 12 72.97 0.97 MAR 13 78.89 2.30 MAR 14 80.20 1.39 13. FURTHER, THERE IS NO STATEMENT OF THE SHARE BRO KER OF THE ASSESSEE NOR ANY INQUIRY HAS BEEN CONDUCTED BY THE ASSESSING OFFICER THAT THIS WAS A SHAM TRANSACTION. IN NONE OF THE STATEMENT OF BROKERS REPRODUCED IN THE ASSESSME NT ORDER THERE IS ANY WHISPER THE ASSESSEES BROKER, M/S. IN DIANIVESH SECURITIES PVT. LTD. WAS INDULGED IN ANY SUCH ACTIV ITIES. THERE IS NO DIRECT OR INDIRECT MATERIAL OR STATEMENT THAT ASSESSEE WAS EITHER BENEFICIARY OR WAS INDULGED IN BOGUS TRA NSACTION. THE ASSESSEE HAS DULY DISCHARGED THE ONUS BY PROVIN G THE GENUINENESS OF THE TRANSACTION BY FILING ALL THE DE TAILS RELATING TO PURCHASE, DEMATERIALIZATION WHICH WAS DONE IMMED IATELY AFTER THE PURCHASE AND SALE WHICH ALMOST AFTER ONE AND A HALF YEARS AND ALL THE DOCUMENTARY HAVE BEEN PRODUCED TO PROVE I.T.A. NO.1691/DEL/2019 16 THE GENUINENESS OF THE LONG TERM CAPITAL GAIN. IN R ESPECT OF SAME SCRIP, HE HAS FILED THE DECISION OF CO-ORDINAT E BENCH IN THE CASE OF DEEP NAGAR VS. ACIT, ITA NO.3212/DEL/20 19 ORDER DATED 12.06.2019 TO SHOW THAT TRADING IN THESE SHAR ES AND LTCG HAS BEEN ACCEPTED TO BE GENUINE AND ALSO FOLLO WING DECISION OF CO-ORDINATE BENCHES DEALING IN THE SAME SCRIP:- (A) SMT. SUMITA HINGER VS. ITO, WARD - 22 (1) 2019 (7) TMI 529 (KOLKATA LTAT) (B) RAMESH CHANDRA K. SHAH VERSUS ACIT CENTRAL CIRC LE- 30), 2019 (2) ITA NO. 113/KOL/2018(KOLKATA ITAT). (C) MUKTA GUPTA, MOHAN LAI AGARWAL (HUF) VERSUS ITO , WARD-1 (4), GHAZIABAD VIDE I.T.A. NO.2766/DEL/2018, I.T.A. NO.2767/DEL/2018 DATED 26.09.2018. (D) COMMISSIONER OF INCOME TAX-1 VS MAHESH CHANDRA G. VAKIL (2013) 10 TAXMANN.COM 326 (GUJRAT HIGH COURT) (E) COMMISSIONER OF INCOME TAX-1 VS HIMANI M VAKIL (20 13) 10 TAXMANN.COM 326 (GUJRAT HIGH COURT) 14. LASTLY, HE ALSO STATED THAT ALL THOUGH NO STATE MENT OF THE ASSESSEES BROKER HAS BEEN RECORDED NOR ANY INQUIRY HAS BEEN MADE, BUT EVEN IF THE ASSESSING OFFICER IS RELYING UPON SOME 3 RD PARTY BROKERS STATEMENT NOT RELATED TO THE ASSESS EE NOR DEALT BY THE ASSESSEE THEN SAME CANNOT BE RELIED WI THOUT ALLOWING ANY CROSS OBJECTION OF SUCH BROKERS. THUS, NO ADDITION IS WARRANTED. 15. ON THE OTHER HAND, LD. SENIOR DR STRONGLY REL IED UPON THE ORDER OF THE ASSESSING OFFICER AND LD. CIT(A) A ND SUBMITTED THAT HERE IN THIS CASE THE SHARES HAVE BE EN I.T.A. NO.1691/DEL/2019 17 PURCHASED AT RS.5 LAC WHICH HAS BEEN SOLD FOR MORE THAN RS.1.82 CRORES WITHIN SPAN OF 14 MONTHS AND ASSESSI NG OFFICER HAS DISCUSSED IN DETAIL HOW THE PRICE IN TH E STOCK EXCHANGE WAS RIGGED SOLELY TO BENEFIT THE BENEFICIA RIES WHEN INVESTIGATION WING AFTER DETAILED INQUIRY HAVE FOUN D FROM VARIOUS BROKER THAT THEY HAVE PROVIDED ACCOMMODATIO N ENTRY TO VARIOUS PERSONS IN THIS SCRIP, THEN STRONG PRESU MPTION GOES THAT THE ASSESSEE TOO HAS TAKEN ACCOMMODATION ENTRY . LASTLY, HE STRONGLY RELIED UPON THE JUDGMENT OF HONBLE HIGH COURT IN THE UDIT KALRA VS. ITO, ITA NO.220/2019, ORDER DATED MARCH 8, 2019, 16. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDERS A S WELL AS MATERIAL REFERRED TO BEFORE US. AS STATED ABOVE, TH E ASSESSEE HAS APPLIED FOR 50,000 SHARES OF M/S. AAR INFRASTRU CTURE LTD. FOR FACE VALUE OF RS.10 AND PAID CONSIDERATION OF R S.5 LACS VIDE CHEQUE NO.169799 DATED 13.01.2011. THE SAID PU RCHASE HAS BEEN RECORDED IN THE ACCOUNTS OF THE EARLIER YE AR AND IS ALSO REFLECTED FROM THE COPY OF BANK STATEMENT PLAC E AT PAPER BOOK AT PAGES 25. THE PURCHASES MADE IN THE EARLIER YEARS HAVE BEEN ACCEPTED AS ONLY NET LTCG HAS BEEN TAXED BY THE ASSESSING OFFICER. THE ASSESSEE WAS ALLOTTED SHARES OF M/S. AAR INFRASTRUCTURE LTD. AND IMMEDIATELY THEREAFTER, THE ASSESSEE HAD DEMATERIALISED THE SHARES ON 26.02.201 1 WHICH IS EVIDENT FROM THE COPY OF DEMAT ACCOUNT ENCLOSED AT PAGES 27 TO 28 OF THE PAPER BOOK. LATER, M/S. AAR INFRAST RUCTURE GOT AMALGAMATED WITH M/S. CCL INTERNATIONAL LTD. AND AC CORDING I.T.A. NO.1691/DEL/2019 18 TO AMALGAMATION SCHEME, THE ASSESSEE RECEIVED 1,25, 000 SHARES OF M/S. CCL INTERNATIONAL LTD. IN THE PROPOR TION OF 250 EQUITY SHARES RS.2 PER SHARE AND RS.100 EQUITY SHAR E OF RS.10 PER SHARE. THE SHARES WHICH WERE ALLOTTED ON 17.02.2011 HAVE BEEN SOLD AFTER PERIOD OF MORE THAN 18 TO 20 MONTHS, I.E., ON 29.08.2012 TO 10.10.2012. THE SAID SHARES HAVE BEEN SOLD THROUGH STOCK BROKER M/S. INDIANIVES H SECURITIES PVT. LTD. 17. BEFORE US THE LD. COUNSEL HAS IN HIS BRIEF NOTE HAS STATED THAT FOLLOWING DOCUMENTS AND STATEMENTS WERE FILED BEFORE THE AUTHORITIES BELOW: (A) ALL THE TRANSACTIONS WERE SUPPORTED BY PROPER C ONTRACTS NOTES AND DELIVERY OF SHARES WAS MADE THROUGH DE-MA T ACCOUNT WITH STOCK BROKER, M/S INDIANIVESH SECURITIES PVT. LTD. (WHO IS THE MEMBER OF BSE AND REGISTERED WITH SEBI). THE SH ARES WERE SOLD IN THE OPEN MARKET. THE APPELLANT HAS FULFILLE D ALL THE CONDITION U/S 10(38) OF THE INCOME TAX ACT, 1961. T HE APPELLANT HAS ALREADY FILED NATIONAL SECURITY DEPOSITORY LIMI TED GENERATED DEMAT ACCOUNT AND THE BROKER STATEMENT RELATING TO THE SALE OF SHARE IN OUR PAPER BOOK, ALSO RELEVANT DEMAT STATEM ENT HIGHLIGHTING THE SHARES PURCHASED HAS ALREADY BEEN SUBMITTED BEFORE THE LD. AO. B) THE APPELLANT HAS EARNED LONG TERM CAPITAL GAIN THROUGH GENUINE PURCHASE AND SALE OF SHARES OF THE LISTED C OMPANIES IN NORMAL COURSE. THERE WAS NO DEFAULT ON THE PART OF THE APPELLANT. MOREOVER, THE APPELLANT HAS EARNED THE INCOME STRIC TLY FOLLOWING THE NORMS AND GUIDELINES OF SEBI. IF M/S CCL INTERN ATIONAL HAS I.T.A. NO.1691/DEL/2019 19 BEEN IDENTIFIED AS BSE LISTED PENNY STOCK, THE APPE LLANT IS NOT EVEN REMOTELY CONNECTED WITH THESE COMPANIES. SHE W AS NOT AT ALL IN A POSITION TO INFLUENCE THE PURCHASE AND SAL E PRICES OF THEIR SHARES. HARDSHIP CANNOT BE BROUGHT ON THE APPELLANT , IF DEFAULT IS MADE BY THE COMPANY WHICH IS LISTED IN THE BSE. C) IN SUPPORT OF THE GENUINENESS OF THE TRANSACTION THE APPELLANT PRODUCED THE FOLLOWING AT THE TIME OF ASSESSMENT PR OCEEDING: A) COPY OF ALLOTMENT LETTER ISSUED BY M/S AAR INFRASTRUCTURES LIMITED. (PAGE 25) B) COPY OF BANK STATEMENT REFLECTING THE PAYMENT M ADE FOR THE PURCHASE OF 50000 EQUITY SHARES. (PAGE 26) C) COPY OF DEMAT ACCOUNT OF THE APPELLANT. (PAGE 2 7) D) COPY OF STATEMENT OF BROKER REFLECTING THE CRED IT OF 50000 EQUITY SHARE THROUGH PREFERENTIAL ALLOTMENT. (PAGE 28) E) COPY OF ORDER OF DELHI HIGH COURT, DATED 08.10. 2011 IN THE MATTER OF AMALGAMATION OF M/S AAR INFRASTRUCTUR E LIMITED INTO M/S CCL INTERNATIONAL LIMITED. (PAGE 29-44) F) COPY OF CONTACTS NOTES REFLECTING THE SALE PROC EEDS. (PAGE 45-50) G) COPY OF TRANSACTION STATEMENT REFLECTING THE IN CREASE IN THE NUMBER OF SHARES. (PAGE 51) H) COPY OF BANK STATEMENT OF THE APPELLANT REFLECT ING THE AMOUNT RECEIVED ON SALE OF SHARES. (PAGE 54). 18. THE ENTIRE PREMISE OF THE ASSESSING OFFICER FOR TREATING THE ENTIRE TRANSACTION TO BE A BOGUS LONG TERM CAPI TAL GAIN AND MAKING ADDITION U/S. 68 IS THAT, FIRSTLY , M/S. CCL I.T.A. NO.1691/DEL/2019 20 INTERNATIONAL LTD. DID NOT HAVE MUCH FINANCIAL WORT H TO JUSTIFY SUCH A PRICE RISE; SECONDLY , THE SEBI HAD SUSPENDED THE TRADE OF THE SHARE FOR A BRIEF PERIOD; THIRDLY , HE HAS POINTED OUT THE HISTORY OF PRICE RISE BETWEEN 06.02.2010 TO 25.11.2 014 AND THEN HAS DRAWN ADVERSE INFERENCE THAT PRICE OF THES E SHARES WERE MANIPULATED AND RIGGED IN THE STOCK EXCHANGE W HICH WAS SOLELY TO PROVIDE ACCOMMODATION ENTRIES TO THE VARIOUS PARTIES; AND LASTLY , HE HAS ALSO REFERRED TO CERTAIN INQUIRY REPORT OF INVESTIGATION WING KOLKATA DURING THE COU RSE OF WHICH CERTAIN BROKERS HAVE ADMITTED THAT THEY HAD P ROVIDED ACCOMMODATION ENTRIES IN THE SCRIP OF M/S. CCL INTERNATIONAL. BUT NOWHERE IN THE ENTIRE ASSESSMENT ORDER, THERE IS ANY REFERENCE TO ANY MATERIAL OR EVIDENCE THAT ASSESSEE OR ASSESSEES BROKER HAVE BEEN FOUND TO BE INDULGED IN ANY KIND OF ACCOMMODATION ENTRY IN THIS SCRIP. N O INQUIRY WHATSOEVER HAS BEEN MADE FROM THE BROKER OF THE ASS ESSEE. FURTHER, DURING THE PERIOD IN WHICH ASSESSEE HAD PU RCHASED THE SHARES AND HAD SOLD THEM WHETHER THE SEBI HAD SUSPENDED THE TRADING HAS NOT BEEN MENTIONED, IN FA CT, ASSESSING OFFICER HIMSELF MENTIONS THAT THERE WAS B RIEF SUSPENSION IN THE YEAR 2010, WHEREAS THE ASSESSEE H AS PURCHASED SHARES IN THE YEAR 2011 AND SOLD THEM IN THE YEAR 2012. COMING TO THE FINANCIALS, AS CULLED OUT FROM THE RECORDS, THE REVENUE FROM THE OPERATION OF M/S. CCL INTERNATIONAL LTD. FROM MARCH, 2010 TO MARCH, 2012 WAS BETWEEN RS. 55.25 CRORE TO RS. 79 CRORE. THUS, IT C ANNOT BE HELD THAT IT WAS MERE A PAPER ENTITY. FROM A BARE P ERUSAL OF I.T.A. NO.1691/DEL/2019 21 THE HISTORY OF LISTING AND TRADING OF SHARES AND TH E QUOTE OF BOMBAY STOCK EXCHANGE AS QUOTED IN THE ASSESSMENT O RDER, IT CLEARLY REFLECTS THAT AS ON 06.02.2010, THE CLOS ING PRICE WAS RS. 50 AND THERE WAS A STEADY INCREASE AND WITHIN T HE PERIOD OF 4 YEARS THE PRICE HAD REACHED UP TO RS.609 ON 25 .11.2014. NOWHERE, IT HAS BEEN POINTED OUT THAT THE RISE WAS BEYOND THE CAP LAID DOWN BY THE SEBI, BECAUSE THE PRICE OF THE SCRIP CANNOT RISE BEYOND THE CAP PRESCRIBED BY THE SEBI. IF THE SHARES HAVE BEEN PURCHASED AND SOLD FROM THE STOCK EXCHANGE ON A QUOTED PRICE WITH PROPER CONTRACT NUM BER, TRADE TIME AND AFTER PAYING STT, THEN IT IS VERY DI FFICULT TO ASSUME THAT THE SALE PROCEEDS RECEIVED FROM SALE OF SUCH SHARES IS BOGUS, ESPECIALLY WHEN PURCHASE OF SHARES ARE NOT IN DISPUTE. THIS INTER ALIA MEANS ASSESSEE WAS IN P OSSESSION OF SHARES WHICH WERE ALSO DEMATERIALISED. TO PROVE THAT SUCH A TRANSACTION WAS IN THE NATURE OF BOGUS OR COLOURA BLE TRANSACTION, THERE HAS TO BE SOME INQUIRY OR MATERI AL TO NAIL THE ASSESSEE THAT SHE WAS SOME KIND OF A BENEFICIAR Y IN SOME ACCOMMODATION ENTRY OPERATION. NO DEFECT HAS BEEN P OINTED OUT IN THE DOCUMENTS SUBMITTED BY THE ASSESSEE NOR HAS THE BROKER OF THE ASSESSEE BEEN INQUIRED UPON. SIMPLY R ELYING UPON THE GENERAL MODUS OPERANDI AND STATEMENT OF SO ME BROKERS RECORDED BY THE KOLKATA INVESTIGATION WING DOES NOT MEAN THAT ALL THE TRANSACTIONS UNDERTAKEN OF THE SC RIP M/S. CCL INTERNATIONAL LTD. THROUGH THE COUNTRY BY MILLI ONS OF SUBSCRIBERS ARE BOGUS. THUS, IN ABSENCE OF ANY MATE RIAL OR EVIDENCE AGAINST THE ASSESSEE, WE DO NOT FIND ANY R EASON AS TO I.T.A. NO.1691/DEL/2019 22 WHY THE CLAIM OF LONG TERM CAPITAL GAIN FROM SALE O F SUCH SHARE SHOULD BE DENIED. CONSEQUENTLY, THE ADDITION ON ACCOUNT OF COMMISSION IS ALSO DELETED. ACCORDINGLY, WE DELETE THE ADDITION MADE BY THE ASSESSING OFFICER. 19. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH OCTOBER, 2019. SD/- SD/- [PRASHANT MAHARISHI] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 7 TH OCTOBER, 2019 PKK: