INCOME TAX OFFICER, BHARATPUR V. SHRI KAPIL MITTAL , DHOLPUR

ITA 17/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2470 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 03-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Assessee Lawyers: MAHENDRA GARGIEYA ADV DHK
• Keywords: Unexplained cash credit; Income from undisclosed sources; Share purchase agreement; Principle of natural justice; Opportunity of cross examination; Earning of tax free income; Tangible material; Fair market value; Wrong claim; Corroborative evidences; Accommodation entries; Scheme of amalgamation; Retraction; Sham transactions
• Section: 69C; 133A; 131; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 17/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2014-15 INCOME TAX OFFICER, WARD-4, BHARATPUR CUKE VS. KAPIL MITTAL, KOTHI, NEAR OLD BUS STAND, DHOLPUR (RAJ). LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADDPM 5233 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI J.C. KULHARI (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 09/08/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 29/08/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 09/10/2017 OF LD. CIT(A), ALWAR FOR THE A.Y. 2014-15 . THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 2,59,22,699/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 R.W.S. 115BE OF THE I.T. ACT, 1961 WITHOUT APPRECIATING THE MATERIAL FACTS O F THE CASE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 10,66,155/- M ADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED COMMISSION EXPENSES U/S 69C OF THE IT ACT, 1961. ITA 17/JP/2018_ ITO VS KAPIL MITTAL 2 2. THE ASSESSEE IS INDIVIDUAL AND FILED HIS RETURN O F INCOME ON 31/07/2014 DECLARING TOTAL INCOME OF RS. 9,60,780/- . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS CLAIMED LONG TERM CAPITAL GAIN OF RS. 2,59,22,6 99/- ON SALE OF SHARES OF M/S KAILASH AUTO FINANCE LIMITED. THE ASSESSEE H AS PURCHASED THREE LACS SHARES OF CAREFUL ADVISORY LTD. AND FOUR LACS SHARES OF PANCHSHUL MARKETING LTD. VIDE INVOICE DATED 12/3/2012 AND 12/ 07/2012. THE TRANSACTION OF PURCHASE OF SHARES ARE IDENTICAL TO THAT OF THE TRANSACTIONS OF PURCHASE AND SALE OF SHARES OF SHRI SAURABH MITT AL IN ITA NO. 16/JP/2018. THE LD DR AS WELL AS THE LD AR OF THE AS SESSEE HAS ALSO ACCEPTED THAT THE FACTS AND ISSUE INVOLVED IN THIS CASE ARE SIMILAR TO THE FACTS IN THE CASE OF SAURABH MITTAL IN ITA NO. 16/J P/2018, THEREFORE, THE SUBMISSIONS MADE BY THE LD DR AND THE LD AR SHALL A PPLY MUTATIS MUTANDIS IN THIS CASE ALSO. 3. WE HAVE CONSIDERED THE ISSUES INVOLVED IN GROUND S NO. 1 AND 2 OF THE REVENUES APPEAL IN THE CASE OF SAURABH MITTAL IN ITA NO. 16/JP/2018 VIDE EVEN DATED ORDER AS UNDER: 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AS WELL THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE STATED TO HAVE PURCHASED THR EE LACS SHARES OF CAREFUL PROJECTS ADVISORY LTD. FOR A CONS IDERATION OF RS. 3.00 LACS VIDE INVOICE DATED 12/3/2012. WE FIND THA T M/S ITA 17/JP/2018_ ITO VS KAPIL MITTAL 3 SANSKRITI VINCOM PVT. LTD. HAS ISSUED THE INVOICE D ATED 12/3/2012 FOR THE PURCHASE MADE BY THE ASSESSEE OF THREE LACS SHARES OF CAREFUL PROJECTS ADVISORY LTD.. THE PAYMENTS OF THE CONSIDERATION OF RS. 3.00 LACS WAS MADE BY THE ASSESSEE THROUGH HI S BANK ACCOUNT WITH ICICI BANK AND THE STATEMENT OF BANK AC COUNT REFLECTED SAID PAYMENT OF RS. 3.00 LACS ON N14/3/20 12. THUS, THE PAYMENT OF CONSIDERATION THROUGH BANK ACCOUNT FOR P URCHASE OF SHARES IS NOT IN DISPUTE AS THE SAME HAS BEEN PROVE D BY THE EVIDENCE WHICH CAN BE VERIFIED INDEPENDENTLY WITHOUT EVEN ANY SCOPE OF MANIPULATION OR CONTROL BY THE ASSESSEE. S IMILARLY, THE PURCHASE TRANSACTION OF FOUR LACS SHARES OF M/S PAN CHSHUL MARKETING LTD. VIDE INVOICE DATED 12/7/2012 ISSUED BY M/S SANSKRITI VINCOM PVT. LTD. IS ALSO ESTABLISHED TO T HE EXTENT THAT THE ASSESSEE MADE PAYMENT OF PURCHASE CONSIDERATION OF RS. 4.00 LACS THROUGH HIS BANK ACCOUNT WITH ICICI BANK A ND THE PAYMENT IS DULY REFLECTED IN THE BANK ACCOUNT STATE MENT. THEREFORE, THE PAYMENT OF PURCHASE CONSIDERATION HA S BEEN ESTABLISHED BEYOND ANY DOUBT. THE ONLY QUESTION WHICH CAN BE RAISED FOR THIS TRANSACTION OF PURCHASE OF SHARES O F THESE TWO COMPANIES IS THE SUPPRESSION OF PURCHASE PRICE SO A S TO CREATE AN ARTIFICIAL CAPITAL GAIN OF MAXIMUM AMOUNT. HOWEVER, THE ASSESSING OFFICER HAS NOT GIVEN ANY FINDING THAT TH E PURCHASE PRICE WAS ARTIFICIAL SUPPRESSED BY THE PARTIES WITH I NTENTION TO MAXIMIZE THE CAPITAL GAIN THROUGH THE MODUS OPERAND I OF BRINGING THE ASSESSEE UNACCOUNTED INCOME IN THE SH APE OF LONG TERM CAPITAL GAIN EXEMPT U/S 10(38) OF THE ACT. THE ASSESSING OFFICER HAS GIVEN MUCH EMPHASIS ON THE REPORT OF DD IT(INV.), ITA 17/JP/2018_ ITO VS KAPIL MITTAL 4 KOLKATA AND SOME STATEMENTS WERE RECORDED DURING THE INVESTIGATION PROCEEDINGS BY KOLKATA WING WHEREIN THR EE PERSONS WHO WERE BROKERS NAMELY SHRI ANIL KHEMKA, SHRI DEVESH UPADHYAY AND SHRI PANKAJ AGARWAL WERE EXAMINED BY THE DDIT(INV.), KOLKATA AND IN THEIR STATEMENTS RECORDED U/S 131(1) AND 133A OF THE ACT, THEY ADMITTED THEIR INDULGENCE IN PROVIDING ACCOMMODATION ENTRIES OF BOGUS CAPITAL GAIN IN SOME OF THE SCRIPTS INCLUDING THE SCRIPTS OF M/S KAILASH AUTO F INANCE LTD. HOWEVER, WE FIND THAT IN THE ENTIRE REPORT OF INVESTI GATION WING OF WHICH THE RELEVANT PART IS REPRODUCED BY THE ASSE SSING OFFICER AS WELL AS THE STATEMENTS OF THESE PERSONS, THERE IS NO MENTION EITHER OF THE ASSESSEE OR M/S SANSKRITI VINCOM PVT. LTD. THROUGH WHOM THE ASSESSEE PURCHASED THESE SHARES. THUS, EVEN IF THREE PERSONS ARE CONSIDERED TO HAVE INDULGED IN THE TRAN SACTION OF PROVIDING ACCOMMODATION ENTRIES, IT WOULD NOT AUTOMA TICALLY LEAD TO THE CONCLUSION THAT EACH AND EVERY TRANSACTION I N PURCHASE AND SALE OF SHARES OF THOSE COMPANIES ARE BOGUS TRA NSACTIONS, WHICH WERE BETWEEN THE SOME OTHER PARTIES NOT CONNECTE D WITH THOSE OPERATORS. EVEN OTHERWISE IN THE CASE IN HAND, THE ASSESSEE DID NOT PURCHASE THE SHARES OF M/S KAILASH AUTO FINANCE LTD. BUT THE ASSESSEE PURCHASED THE SHARES OF CAREF UL PROJECTS ADVISORY LTD. AND M/S PANCHSHUL MARKETING LTD.. THES E TWO COMPANIES WERE SUBSEQUENTLY AMALGAMATED WITH M/S KAIL ASH AUTO FINANCE LTD. IN PURSUANT TO THE SCHEME OF AMAL GAMATION APPROVED BY THE HONBLE ALLAHABAD HIGH COURT AS WELL AS THE HONBLE BOMBAY HIGH COURT VIDE THEIR RESPECTIVE DEC ISIONS DATED 09 TH & 10 TH MAY, 2013. CONSEQUENTLY, THE ASSESSEE WAS ALLOTTED ITA 17/JP/2018_ ITO VS KAPIL MITTAL 5 EQUAL NUMBER OF SHARES OF THE AMALGAMATED ENTRIES O F M/S KAILASH AUTO FINANCE LIMITED IN LIEU OF THE SHARES HELD BY THE ASSESSEE IN ERSTWHILE TWO COMPANIES NAMELY CAREFUL P ROJECTS ADVISORY LTD. AND PANCHSHUL MARKETING LTD.. THE ALLO TMENT OF THESE SHARES ARE DULY REFLECTED IN THE RECORD THROU GH THE CORRESPONDENCE OF THE ALLOTMENT AND THE SAME COMPAN Y M/S KAILASH AUTO FINANCE LTD. IS A LISTED COMPANY IN TH E STOCK EXCHANGE, THEREFORE, THE ALLOTMENT OF SHARES BY THE SAID COMPANY IS VERIFIABLE TRANSACTION FROM AN INDEPENDE NT RECORD. THE ASSESSEE HAS ALSO PRODUCED DEMAT ACCOUNT SHOWING T HE SHARES HELD IN THE DEMATERIALIZED FORM AND THEREFOR E, THE HOLDING OF THE SHARES BY THE ASSESSEE AFTER THE DEMATERIALI ZATION CANNOT BE QUESTIONED FROM ANY ANGLE. DURING THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION, THE ASS ESSEE SOLD THESE SHARES THROUGH STOCK EXCHANGE AND FROM HIS DE MAT ACCOUNT. THE SALE TRANSACTION OF SHARES THROUGH STOC K EXCHANGE IS NOT IN DOUBT AND THE SHARES WERE SOLD FROM THE DE MAT ACCOUNT OF THE ASSESSEE IS ALSO CANNOT BE DOUBTED. THE SALE PRICE AS ON THE DATE OF TRANSACTION IS ALSO THE PREVAILIN G PRICE IN THE STOCK EXCHANGE. HENCE IT IS NOT A CASE OF THE ASSES SING OFFICER THAT THE ASSESSEE HAS SHOWN AN INFLATED SALE PRICE WH ICH IS NOT AS PER THE PREVAILING MARKET PRICE OF THE SHARES OF M/ S KAILASH AUTO FINANCE LTD.. IT IS PERTINENT TO NOTE THAT THE SHAR ES OF M/S KAILASH AUTO FINANCE LTD. WERE ISSUED TO THE ASSESSEE ONLY IN LIEU OF THE SHARES OF ERSTWHILE TWO COMPANIES M/S CAREFUL PROJECT S ADVISORY LTD. AND M/S PANCHSHUL MARKETING LTD. AND IT IS NOT A TRANSACTION OF ACQUIRING THE SHARES OF M/S KAILASH AUTO FINANCE LTD AGAINST ITA 17/JP/2018_ ITO VS KAPIL MITTAL 6 THE CONSIDERATION. THUS, THE ALLOTMENT OF SHARES BY M/S KAILASH AUTO FINANCE LTD. IN PURSUANT TO THE SCHEME OF AMAL GAMATION ESTABLISHED THE FACT THAT THE ASSESSEE WAS ALREADY H OLDING THE EQUAL NUMBER OF SHARES IN THE ERSTWHILE COMPANIES N AMELY M/S CAREFUL PROJECTS ADVISORY LTD. AND M/S PANCHSHUL MA RKETING LTD. THUS THE HOLDING OF SHARES BY THE ASSESSEE AND ALLOT MENT OF SHARES OF M/S KAILASH AUTO FINANCE LTD. ARE THE MAT ERIAL FACTS EMERGING FROM THE RECORDS, WHICH CANNOT BE DISPUTED . THE ALLOTMENT OF SHARES OF M/S KAILASH AUTO FINANCE LTD . ITSELF IS A PROOF OF HOLDING OF SHARES BY THE ASSESSEE IN THE E RSTWHILE COMPANIES WHICH GOT AMALGAMATED INTO NEW ENTITY. HENC E, ALL THESE FACTS GO TO PROVE BEYOND ANY DOUBT THAT THE A SSESSEE WAS HOLDING THE SHARES IN QUESTION AND THE PAYMENT OF C ONSIDERATION WAS DULY MADE THROUGH BANKING CHANNEL, WHICH IS ALSO NOT IN DISPUTE. THE ASSESSING OFFICER HAS TREATED THE TRANS ACTION AS BOGUS ONLY ON THE BASIS OF THE STATEMENTS RECORDED BY THE INVESTIGATION WING, KOLKATA, HOWEVER, EVEN IF THOSE STATEMENTS ARE CONSIDERED AND TAKEN INTO ACCOUNT, IT CANNOT LE AD TO THE CONCLUSION OR ESTABLISH THE FACT THAT THE ASSESSEE WAS PART OF THE SAID RACKET OF PROVIDING ACCOMMODATION ENTRIES OF B OGUS CAPITAL GAIN. THE LD. CIT(A) WHILE CONSIDERING ALL THESE FACTS , HAVE DECIDED THE ISSUE IN PARA 5.4 AND 5.5 AS UNDER: 5.4 I HAVE CONSIDERED THE ABOVE MENTIONED FACTS OF THE CASE. IT IS MY CONSIDERED VIEW THAT THE ASSESSEE NEEDS TO MAINTAIN AND PRODUCE FOLLOWING DOCUMENTS/EVIDENCE TO PROVE THE GENUINENE SS OF THE SHARE TRANSACTION. TO CONCLUDE ASSESSEE NEED TO MAINTAIN THE FOLLOWING DOCUMENTS IN ORDER TO PROVE GENUINENESS OF THE INVE STMENTS:- ITA 17/JP/2018_ ITO VS KAPIL MITTAL 7 BASIC DOCUMENTS SOURCE OF THE INVESTMENTS MADE. BUSINESS ACTIVITY OF THE INVESTOR. CONTRACT NOTE FOR PURCHASE OF INVESTMENT MADE AND S ALE OF INVESTMENT. BANK STATEMENT REFLECTING PAYMENT AND RECEIPT OF SA LE OF INVESTMENTS. DEMAT STATEMENT TO PROVE DELIVERY OF SHARES. LEDGER COPY OF SHARE BROKER A/C. COPY OF LEDGER A/C OF SOURCE OF INVESTMENT. ADDITIONAL DOCUMENTS/INFORMATION WHICH CAN EVEN HE LP DURING INVESTIGATION TO PREPARE THE JUSTIFICATION/ REASON TO BUY SHARES OF THAT COMPANY? NAME AND ADDRESS OF THE PERSON WHO HAS RECOMMENDED THE PURCHASE OF SHARES. ANALYSIS OF FINANCIAL PERFORMANCE BEFORE PURCHASE O F SHARE. COPY OF SHARE PURCHASE AGREEMENT, IF ANY. REASON FOR SELLING THE SHARES. BUSINESS OF THE INVE STOR/COMPANY INVESTING THE SHARES? THE FREQUENCY OF ANALYSIS OF PERFORMANCE OF THE INV ESTEE COMPANY AND KINDS OF ANALYSIS ASSESSEE DID. HOW DID ASSESSEE PLACE THE PURCHASE ORDERS WITH BRO KER? TO WHOM DID HE SPEAK / INSTRUCT FOR PLACING THE ORDERS? HOW WAS THE PAYMENT MADE/RECEIVED TO/FROM BROKER? WHAT IS THE STATUS OF THAT DEMAT ACCOUNT? JUSTIFICATION IN CASE OF DELAY IN DEMATERIALIZATION OF SHARES, SINCE IT IS ONE OF THE MAIN INGREDIENTS TO PROVE BACKDATED PURCHASE OF SHARES. SO FAR AS THE BASIC DOCUMENTS ARE CONCERNED, THEY H AVE BEEN FILED BEFORE THE A.O AND ALSO DURING THE APPELLATE PROCEEDINGS. ADDITIONAL INFORMATIONS AS STATED ABOVE HAVE ALSO B EEN PROVIDED BY THE APPELLANT. IN THIS REGARD I HAVE TAKEN NOTE OF THE FACT THAT THE APPELLANT IS HIMSELF A FOUNDER AND PROMOTER OF RAGHUNANDAN GR OUP AND IS A MANAGEMENT GRADUATE HAVING EXPERIENCE OF MORE THAN 19 YEARS IN FINANCIAL MARKET AND FINANCIAL PRODUCTS. IN THIS RE GARDS, THE APPELLANT HAS SUBMITTED AS UNDER; 1. HE HAS AN IN DEPTH KNOWLEDGE AND STRONG UNDERSTANDI NG OF VARIOUS INTRICACIES OF FINANCIAL MARKET. THE APPELLANT HAS BEEN INVESTING IN THE SHARE MARKET BASED ON VARIOUS REPORTS , ANALYSIS AND STUDIES MADE BY EXPERTS IN THE FIELD, WHICH ARE PUBLISHED IN NEWSPAPERS, TRADE MAGAZINES ETC. AS ALSO ON THE BASIS OF KNOWLEDGE GAINED THROU GH ACQUAINTANCES. ITA 17/JP/2018_ ITO VS KAPIL MITTAL 8 2. DURING THE PERIOD APRIL 2013 TO APRIL 2016, THE APPELLANT HAD TRADED IN SEVERAL OTHER SECURITIES AS WELL THROUGH THE STOCK EXCHANGE MECHA NISM. IN OR ABOUT FEBRUARY 2012, THE APPELLANT CAME TO KNOW FROM MR. ANUJ GOYAL THAT SHARES OF CAREFUL PROJECTS ADVISORY LTD. (CPAL) WERE AVAILABLE WITH ONE SANSKRITI VINCOM PVT. LTD. MR. ANUJ GOYAL ALSO IMPRESSED UPON THE APPELLANT THAT CPAL WAS ENGAGED IN TO THE BUSINESS OF INVESTMENT IN VARIOUS COMPANIES AND WERE HOLDING SHARES OF VARIOU S COMPANIES. THE APPELLANT WAS INFORMED THAT THESE INVESTMENT MADE B Y CPAL WOULD GROW AND COULD YIELD GOOD PROFITS TO THE APPELLANT. IN VIEW OF THE SAME THE APPELLANT THOUGHT IT FIT AND PRESUMED IT TO BE A GOOD INVESTMENT OPPORTUNITY AND DECIDED TO PURCHASE SHARES OF CPAL. ACCORDINGLY IN MARCH, 2012, THE APPELLANT PURCHASED 300000 SHARES OF CPAL AT THE PRICE OF RS. 1 PER SHARE FOR A TOTAL CONSIDERATION OF RS. 3,00,000 /-. 3. FURTHER IN MAY 2012 THE APPELLANT CAME TO KNOW T HAT CPAL AND ONE PANCHSHUL MARKETING LTD. ('PML') HAD PURCHASED IN KAILASH AUT O FINANCE LTD. (KAL) AND ONCE THE COMPANY IS ACQUIRED BY THE PML AND CPAL TH EY WOULD INFUSE FRESH CAPITAL IN KAL AND THEY WOULD BE REVAMPING THE BUSINESS DRASTICALLY. ACCORDINGLY IN JULY 2012 , OUR CLIENT AGAIN APPROACHED SANSKRITI VINCOM PRIVATE LIMITED AND PURCHASED 400000 SHARES OF PML AT THE PRICE OF RS. 1 PER SHARE FOR A TOTAL CONSIDERATION OF RS. 4, 00,000/-. 4. FOLLOWING THE AMALGAMATION OF CPAL AND PML WITH KAILASH AUTO FINANCE LTD. PURSUANT TO THE SCHEME OF AMALGAMATION SANCTIONED B Y THE HON BLE ALLAHABAD HIGH COURT AND THE HONBLE BOMBAY HIGH COURT ON 9 TH AND 10 TH MAY 2013 RESPECTIVELY, AND ON JULY 22, 2013 THE APPELLANT WAS ALLOTTED 7,00,000 SHARES OF KAILASH AUTO FINANCE LTD. FOR THE 3.00.000 AND 4.00,000 SHARES HELD BY HIM IN CPAL AND PML. THE APPELLANT HAD THEREFORE, NOT DIRECTLY INVESTED IN THE SHARES OF KAILASH AUTO FIN ANCE LTD. BUT WAS ALLOTTED SHARES OF KAILASH AUTO AS A RESULT OF THE AMALGAMAT ION OF CPAL AND PML WITH KAILASH AUTO FINANCE LTD. BETWEEN JANUARY 2013 AND JANE 04. 2013 THE SHARES OF KAILASH AUTO FINANCE LTD. WERE TRADING ON THE STOCK EXCHANGE IN THE PRICE RANGE OF RS. 11 /- TO RS. 44.35/-. SEEING THIS AS A GOOD OPPORTUNITY TO EARN A GOOD RETURN ON HIS INVESTMENT , THE APPELLANT SOLD THE 7,00,000 SHARES OF KAILASH AUTO FINANCE LTD. HELD B Y HIM ON THE STOCK EXCHANGE MECHANISM I HAVE ALSO TAKEN NOTE OF THE FACT THAT THE APPELLA NT HAS SOLD THE SCRIP OF KAFL THROUGH RECOGNIZED STOCK EXCHANGE ON VARIOUS D ATES FROM 29/07/2013 TO 23/10/2013 AND THROUGH REGISTERED STO CK BROKER. WHEN SALE OF THE SHARES HAVE BEEN RECOGNIZED AS GENUINE THEN CORRESPONDING PURCHASE OF SUCH SHARES IN THE DEMAT FORM IS ALSO R ECOGNISED. THE A.O HAS PARTICULARLY RAISED THE ISSUE OF EXORBITANT PRI CE OF THE SHARE AT WHICH THEY ARE SOLD AS COMPARED TO VERY LOW PURCHASE PRIC E. IF THERE ANY ITA 17/JP/2018_ ITO VS KAPIL MITTAL 9 MANIPULATION IS DONE TO RIG THE PRICE OF THE SHARES THEN THE SEBI IS THE COMPETENT BODY TO INVESTIGATE IT. SEBI IN ITS ORDER DATED 21/09/2017 HAS STATED THAT NO ADVERSE FINDING AGAINST THE AFOREMEN TIONED 244 ENTITIES WITH RESPECT TO THEIR ROLE IN THE MANIPULATION OF T HE SCRIP OF KAILASH AUTO. ACCORDINGLY SEBI HAS REVOKED THE SUSPENSION OF THE SAID ENTITIES INCLUDING KAFL. MERELY SHARP INCREASE IN SHARE PRICE CANNOT B E THE REASON FOR TREATING SALE/PURCHASE OF SUCH SHARES AS DUBIOUS IN NATURE. I HAVE ALSO CONSIDERED VARIOUS REASONS GIVEN BY THE A.O TO TREAT THE SHARE TRANSACTION AS SHAM TRANSACTION. MERELY, BASI NG THE JUDGMENT ON THE BASIS OF STATEMENT GIVEN BY 3 RD PARTIES WITHOUT CORROBORATING IT WITH EVIDENCES ON RECORD IS NEITHER TENABLE NOR REASONAB LE INFERENCE. THE A.O HAS NOT BROUGHT ON RECORD ANY EVIDENCE THAT ANY CAS H AMOUNT WERE TRANSFERRED , FROM THE APPELLANT TO THE SHARE BROKE RS/INTERMEDIARIES IN LIEU OF MONEY RECEIVED THROUGH CHEQUE BY WAY OF SAL E OF SHARES AT AN EXORBITANT PRICE. IT IS ALSO MY CONSIDERED VIEW THAT PURCHASE OF SHAR ES THROUGH OFF-MARKET IS NOT AN ILLEGAL TRANSACTION. IN THIS REGARD, HON BLE ITAT AT MUMBAI IN CASE OF ACIT VS SHRI RAVINDRAKUMAR TOSHIWAL IN ITA NOS. 5302/MUM/2008 HAS HELD THAT:- WE FIND THAT THE ISSUE IS COVERED BY THE DECISION O F THE TRIBUNAL IN THE CASE OF MUKESH R. MAROLIA WHEREIN IT HAS BEEN HELD THAT OFF MARKET TRANSACTION IS NOT A UNLAWFUL ACTIVITY AND THERE IS NO RELEVANCE IN SEEK ING DETAILS OF SHARE TRANSACTION FROM STOCK EXCHANGE WHEN THE SALE WAS NOT ON STOCK EXCHANGE AND RELYING UPON IT FOR MAKING ADDITION. FURTHER, SALE OF SUCH SHARES HAVE NEITHER BEEN DISP UTED NOR ANY EVIDENCE ARE ON RECORD WHICH SHOWS THEM AS SHAM TRANSACTION. A.OS CASTING DOUBT ON THE APPELLANTS CREDENTIAL AS DIRECTOR IN M/S RAGHUNANDAN CAPITAL PVT. LTD, WHICH IS THE BROKER COMPANY THROU GH WHICH THE SHARES WERE SOLD IS NOT TENABLE IN THE EYES OF THE LAW AS THE APPELLANT IS A SEPARATE ENTITY AND IS WELL QUALIFIED ALSO TO TAKE DECISIONS ON HIS OWN. ITA 17/JP/2018_ ITO VS KAPIL MITTAL 10 FURTHER, THE A.O HAS FAILED TO BRING ON RECORD ANY WRONG DOINGS ON THE PART OF THE BROKER COMPANY IN THE TRANSACTION. THEREFORE, ON FACTUAL MATRIX OF THE CASE, I FAILED TO FIND ANY DISCREPANCY RIGHT FROM THE PURCHASE OF SHARES AND TILL ITS EVEN TUAL SALE. I HAVE ALSO TAKEN INTO ACCOUNT HONBLE RAJASTHAN HI GH COURT JUDGMENT AT JODHPUR IN CASE OF CIT VS. SMT SUMITRA DEVI IN ITA 54/2012 HAS HELD THAT:- TRUE IT IS THAT SEVERAL SUSPICIOUS CIRCUMSTANCES WE RE INDICATED BV THE AO BUT THEN, THE FINDINGS AS ULTIMATELY RECORDED BY HIM HA D BEEN BASED MORE ON PRESUMPTIONS RATHER THAN ON COGENT PROOF. AS FOUND CONCURRENTLY BY THE CIT(A) AND THE IT AT, THE AO HAD FAILED TO SHOW THAT THE M ATERIAL DOCUMENTS PLACED ON RECORD BY THE ASSESSEE LIKE BROKERS NOTE, CONTRACT NOTE, RELEVANT EXTRACT OF CASH BOOK, COPIES OF SHARE CERTIFICATE, DE-MAT STATEMENT ETC. WERE FALSE, FABRICATED .OR FICTITIOUS. THE APPELLATE AUTHORITIES HAVE RIGH TLY OBSERVED THAT THE FACTS AS NOTICED BY THE AO. LIKE THE NOTICE UNDER SECTION 13 6 TO THE COMPANY HAVING BEEN RETURNED UNSERVED; DELAYED PAYMENT TO THE BROK ERS; AND DE- MATERIALISATION OF SHARES JUST BEFORE THE SALE WOUL D LEAD TO SUSPICION AND CALL FOR DETAILED EXAMINATION AND VERIFICATION BUT THEN, FOR THESE FACTS ALONE, THE TRANSACTION COULD NOT BE REJECTED ALTOGETHER, PARTI CULARLY IN ABSENCE OF ANY COGENT EVIDENCE TO THE CONTRARY. IN A RECENT JUDGMENT, JURISDICTIONAL RAJASTHAN HIGH COURT HAS DISMISSED THE REVENUE CASE IN THE CASE OF CIT-1 VRS SMT. POOJ A AGARWAL AND JITENDRA KUMAR AGARWAL IN THE APPEAL NO.385/2011. H ONBLE HIGH COURT IN ITS ORDER DATED 11/09/2017 HAS UPHELD THE DECISI ON OF CIT(A) AND HONBLE ITAT, JAIPUR BENCH, IN GIVING RELIEF TO THE ASSESSEE. HONBLE COURT HAS RECORDED AS UNDER; 8. THE ASSESSEE SUBMITTED REPLY TO THE SHOW CAUSE N OTICE CONTENDING THAT THE SHARE TRANSACTIONS ARE GENUINE AND THE SHORT TERM C APITAL GAIN OF RS.98,56,872/- HAS BEEN EARNED FROM PURCHASES AND S ALES OF SHARES OF KONARK COMMERCIAL LIMITED AND LIMTUX INVESTMENT LTD. INVES TIGATION REVEALED THAT THE ENTIRE SHARE TRANSACTIONS WERE BOGUS AND MERE ACCOMMODATION ENTRIES OBTAINED FROM AN ENTRY PROVIDER SH P K AGARWAL FROM KOLKATA. THE SAID FACTS WERE REVEALED DURING SEARCH CARRIED OUT BY THE INVESTIGATION WINS, JAIPUR IN THE CASE O F B C PUROHIT GROUP . ITA 17/JP/2018_ ITO VS KAPIL MITTAL 11 THEREFORE, IN THE ABOVE MENTIONED JUDGMENTS BY THE JURISDICTIONAL RAJASTHAN HIGH COURT, THE HONBLE COURT HAS UPHELD THE DECISION TAKEN ITA 17/JP/2018_ ITO VS KAPIL MITTAL 12 BY THE ITAT/CIT(A) THAT IF THE ASSESSEE FILES THE C OPY OF CONTRACT NOTE REGARDING PURCHASE AND SALE OF SHARES, ASSESSEE ACC OUNTS WITH THE BROKERS, COPY OF DEPOSITORY A/C OR DEMAT A/C, PAYME NTS AND RECEIPTS ARE MADE THROUGH A/C PAYEE CHEQUES AND THE TRANSACTIONS ARE ROUTED THROUGH RECOGNIZED STOCK EXCHANGE AND NO EVIDENCE T HAT THE CASH HAS GONE BACK TO APPELLANTS ACCOUNT THEN THE SHARE TRA NSACTIONS CANNOT BE DENIED AS BOGUS AND NOT GENUINE. 5.5 THEREFORE, TAKING INTO ACCOUNT ALL FACTUAL MATR IX, JUDICIAL RULINGS INCLUDING JURISDICTIONAL RAJASTHAN HIGH COURT JUDGMENTS, IT I S MY CONSIDERED VIEW THAT THE APPELLANT IN THIS CASE HAS REASONABLY DISC HARGED ITS ONUS BY PROVIDING ALL NECESSARY DETAILS/EVIDENCES AND THE A .O HAS NOT BEEN ABLE TO BRING ON RECORD ANY CREDIBLE EVIDENCES (EXCEPT 3 RD PART STATEMENTS BUT THE ASSESSEE HAS NOT BEEN GIVEN PROPER OPPORTUNITY TO CROSS EXAMINE SUCH PERSONS WHO HAS GIVEN STATEMENT) TO DISPROVE T HE APPELLANTS CONTENTION AND CLAIMS. IN VIEW OF THE FOREGONE, IT IS MY CONSIDERED VIEW THAT THE SHARE TRANSACTION BY THE APPELLANT INVOLVI NG KAFL SHARES CANNOT BE TREATED AS SHAM AND NOT GENUINE. ACCORDINGLY, TH E SHARE TRANSACTION RESULTING IN CAPITAL GAINS OF RS.2,60,17,995/- AS V ALID TRANSACTION AND SUBJECTED TO THE PROVISIONS OF SECTION 10(38) OF TH E ACT. ACCORDINGLY THE ADDITION OF RS.2,60,17,995/- U/S 68 OF THE ACT IS D ELETED. APPELLANTS GROUND OF APPEAL ON THIS ISSUE IS ALLOWED. WE FURTHER NOTE THAT THIS TRIBUNAL HAS ALSO CONSIDER ED THE SIMILAR ISSUE IN THE CASE OF SHRI PRAMOD JAIN VS DCIT (SUPRA ) AND SHRI MEGHRAJ SINGH SHEKHAWAT VS DCIT (SUPRA). IN THE CASE OF SHRI MEGHRAJ SINGH SHEKHAWAT VS DCIT (SUPRA), THE TRIBUNAL VIDE ORDER DATED 07/3/2018 HAS HELD IN PARA 5 AND 6 AS UNDER:- 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS PRODUCED RECORD OF ALLOTME NT OF 3,50,000 EQUITY ITA 17/JP/2018_ ITO VS KAPIL MITTAL 13 SHARES OF M/S RUTRON INTERNATIONAL LTD. UNDER PREF ERENTIAL ISSUE AT PAR OF FACE VALUE OF RS. 10/- EACH VIDE ALLOTMENT LETTER D ATED 08.03.2012. THE ASSESSING OFFICER HAS NOT DISPUTED THE GENUINENESS OF THE LETTER OF ALLOTMENT ISSUED BY THE COMPANY TO THE ASSESSEE WHE REIN IT HAS BEEN COMMUNICATED THAT THE ASSESSEE HAS BEEN ALLOTTED 3, 50,000 EQUITY SHARES VIDE ALLOTMENT LETTER DATED 08.03.2012 AGAIN ST THE APPLICATION OF THE ASSESSEE AT PAR OF FACE VALUE OF RS. 10/- EACH WITHOUT ANY PREMIUM. THE ASSESSEE HAS ALSO PRODUCED THE BANK STATEMENT S HOWING THE PAYMENT OF CONSIDERATION OF THE ACQUISITION OF SHAR ES ON 29.02.2012. IT APPEARS THAT THE SAID PAYMENT WAS MADE BY THE ASSES SEE AT THE TIME OF APPLYING FOR ALLOTMENT OF SHARES AND SUBSEQUENTLY T HE SHARES WERE ALLOTTED BY THE COMPANY ON 01.03.2012. THUS, IT IS CLEAR THAT THE SHARES ACQUIRED BY THE ASSESSEE IS NOT A TRADING TRANSACTI ON BUT THESE WERE ALLOTTED DIRECTLY BY THE COMPANY UNDER THE PREFEREN TIAL ISSUE AND HENCE, THE ROLE OF INTERMEDIATE IS RULED OUT. ONCE, THE SH ARES WERE DIRECTLY ALLOTTED BY THE COMPANY M/S RUTRON INTERNATIONAL LT D. AGAINST THE CONSIDERATION PAID BY THE ASSESSEE THROUGH CHEQUE. THEN THE ROLE OF ANY INTERMEDIATELY PARTICULAR OF SHRI ANIL AGRAWAL IS S AID ALLOTMENT DOES NOT APPEAR FROM ANY OF THE RECORD. EVEN AS PER THE STAT EMENT AS REPRODUCED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER SH RI ANIL AGRAWAL HAS STATED THAT HE IS HAVING BUSINESS NEXUS WITH THE CO MPANIES INCLUDING M/S RUTRON INTERNATIONAL LTD. THE DEPARTMENT PUT A QUES TION ABOUT THE ASSOCIATION WITH AS MANY AS 13 COMPANIES AND IN RES PONSE TO THAT HE HAS ACCEPTED THAT HE IS HAVING BUSINESS NEXUS WITH THES E COMPANIES INCLUDING M/S RUTRON INTERNATIONAL LTD. THE NATURE OF SERVICE WAS ALSO EXPLAINED BY SHRI ANIL AGRAWAL AS THE CONSULTANCY S ERVICES. FOR READY REFERENCE WE QUOTE QUESTION NO. 4 AND 5 AND ANSWER, THERETO IN THE STATEMENT OF SHRI ANIL AGARWAL AS REPRODUCED AS UND ER:- ITA 17/JP/2018_ ITO VS KAPIL MITTAL 14 Q 4. WHETHER M/S COMFORT SECURITIES PVT. LTD. OR YOU HA VE ANY ASSOCIATION WITH THE FOLLOWING COMPANIES OR HAVE EV ER HAD ANY BUSINESS TRANSACTIONS WITH THE COMPANIES AS MENTIONED BELOW: 1. FIRST FINANCIAL SERVICES LTD. (FFSL) 2. SPLASH MEDIA AND INFRA LTD. ( SPMIL) 3. D B (INTERNATIONAL) STOCK BROKERS LTD. ( DBSBL) 4. UNISYS SOFTWARES & HOLDINGS INDUSTRIES LTD. (USH L) 5. FACT ENTERPRISES LTD. ( FEL) 6. PARIKH HERBAL LTD. ( NOW SAFAL HERBS LTD) 7. PREMIER CAPITAL SERVICE 8. RUTRON INTERNATIONA LTD. 9. RADFORD GLOBAL LTD 10. JMD TELEFILMS INDUSTRIES LTD 11. DHANLEELA INVESTMENTS & TRADING CO. LTD. 12. SRK INDUSTRIES LTD. 13. DHENU BUILDCON INFRA LTD. ANS. M/S COMFORT SECURITIES LTD. HAS BUSINESS NEXUS WI TH THE FOLLOWING COMPANIES NAME OF THE COMPANY NATURE OF BUSINESS TRANSACTION 1. FIRST FINANCIAL SERVICES LTD. BROKERAGE AND CON SULTANCY SERVICES 2. SPLASH MEDIA AND INFRA LTD. BROKERAGE, SHARE HOL DING AND CONSU LTANCY SERVICES 3. FACT ENTERPRISES LTD BROKING AS WELL AS SHARE HOLDING 4. RUTRON INTERNATIONAL LTD. CONSULTANCY SERVICES 5. D.B. (INTERNATIONAL) STOCK CONSULTANCY SERVICE S BROKERS LTD. 6. UNISYS SOFTWARE & HOLDING BROKING SERVICES INDUSTRIES LTD. APART FROM THE ABOVE MENTIONED COMPANIES NEITHER I NOR M/S COMFORT SECURITIES LTD. HAS ANY BUSINESS NEXUS WITH THE COM PANIES MENTIONED SUPRA. Q5. DO YOU KNOW THE PROMOTERS AND DIRECTORS OF THE ABO VE SAID COMPANIES? WHETHER M/S COMFORT SECURITIES PVT. LTD. OR YOU HAVE ANY ASSOCIATION WITH THE PROMOTERS AND DIRECTORS OF THE ABOVE SAID COMPANIES OR HAVE EVER HAD ANY BUSINESS TRANSACTION S WITH THE PROMOTERS AND DIRECTORS OF THE ABOVE SAID COMPANIES . ITA 17/JP/2018_ ITO VS KAPIL MITTAL 15 ANS. SIR, I KNOW SOME OF THE DIRECTORS OF THE FIRST FIN ANCIAL SERVICES LIMITED, SPLASH MEDIA & INFRA SERVICES LTD, RUTRON INTERNATIONAL LIMITED AND FACT ENTERPRISE LTD. REGARDING OTHER COMPANIES I AM NOT AWARE WHO ARE THE DIRECTORS OF THESE COMPANIES. THUS, IT IS CLEAR FROM THE RELEVANT PART OF STATEME NT OF SHRI ANIL AGRAWAL AS REPRODUCED BY THE AO THAT HE HAS STATED HAVING B USINESS NEXUS WITH THESE COMPANIES AND NATURE OF BUSINESS BEING CONSUL TANCY SERVICES. HENCE, HE HAS NOT STATED ANYTHING ABOUT PROVIDING B OGUS LONG TERM CAPITAL GAIN IN RESPECT OF THE EQUITY SHARES OF M/S RUTRON INTERNATIONAL LTD. A BUSINESS NEXUS WITH ANY COMPANY WILL NOT AUT OMATICALLY LEAD TO THE CONCLUSION THAT THE SHARES ALLOTTED BY THE OTHE R COMPANY IS BOGUS TRANSACTION. AS PER QUESTION NO. 5 AND ANSWER THERE TO IT IS CLEAR THAT SHRI ANIL AGRAWAL WAS NOT THE DIRECTOR OF M/S RUTRON INT ERNATIONAL LTD. BUT HE HAS STATED TO KNOW SOME OF THE DIRECTORS OF THES E COMPANIES INCLUDING M/S RUTRON INTERNATIONAL LTD. HENCE, FROM THIS RELEVANT PART OF THE STATEMENT OF SHRI ANIL AGRAWAL IT CANNOT BE IN FERRED THAT HE HAS PROVIDED THE BOGUS LONG TERM CAPITAL GAIN FROM PURC HASE AND SHARES OF EQUITY SHARES OF M/S RUTRON INTERNATIONAL LTD. MUCH LESS THE SPECIFIC TRANSACTION OF PREFERENTIAL ISSUE ALLOTMENT OF SHAR ES BY THE COMPANY ITSELF TO THE ASSESSEE. FURTHER, THOUGH HE HAS EXPL AINED THE MODUS OPRENDI OF PROVIDING BOGUS LONG TERM CAPITAL GAIN E NTRIES IN THE EQUITY SHARES HOWEVER, WHEN THE TRANSACTION WAS NOT ROUTED THROUGH SHRI ANIL AGRAWAL AND THE SHARES WERE ALLOTTED DIRECTLY BY TH E COMPANY TO THE ASSESSEE AT PAR ON FACE VALUE THEN THE SAME CANNOT BE CONSIDERED AS A PENNY STOCK TRANSACTIONS. THE ASSESSEE HAS PRODUCED THE D-MAT ACCOUNT AND THEREFORE, AS ON 18.06.2012 THE ASSESSEE WAS HO LDING 3,50,000 EQUITY SHARES OF M/S RUTRON INTERNATIONAL LTD. IN D -MAT ACCOUNT. THIS FACT OF HOLDING THE SHARES IN THE D-MAT ACCOUNT AS ON 18 .06.2012 CANNOT BE DISPUTED. FURTHER, THE ASSESSING OFFICER HAS NOT EV EN DISPUTED THE EXISTENCE OF THE D-MAT ACCOUNT AND SHARES CREDITED IN THE D-MAT ACCOUNT ITA 17/JP/2018_ ITO VS KAPIL MITTAL 16 OF THE ASSESSEE. THEREFORE, ONCE, THE HOLDING OF SH ARES IS D-MAT ACCOUNT CANNOT BE DISPUTED THEN THE TRANSACTION CANNOT BE H ELD AS BOGUS. THE AO HAS NOT DISPUTED THE SALE OF SHARES FROM THE D-M AT ACCOUNT OF THE ASSESSEE AND THE SALE CONSIDERATION WAS DIRECTLY CR EDITED TO THE BANK ACCOUNT OF THE ASSESSEE, THEREFORE, ONCE THE ASSESS EE PRODUCED ALL RELEVANT EVIDENCE TO SUBSTANTIATE THE TRANSACTION O F PURCHASE, DEMATERIALIZATION AND SALE OF SHARES THEN, IN THE A BSENCE OF ANY CONTRARY MATERIAL BROUGHT ON RECORD THE SAME CANNOT BE HELD AS BOGUS TRANSACTION MERELY ON THE BASIS OF STATEMENT OF ONE SHRI ANIL AGRAWAL RECORDED BY THE INVESTIGATION WING, KOLKATA WHEREIN THERE IS A GENERAL STATEMENT OF PROVIDING BOGUS LONG TERM CAPITAL GAIN TRANSACTION TO THE CLIENTS WITHOUT STATING ANYTHING ABOUT THE TRANSACT ION OF ALLOTMENT OF SHARES BY THE COMPANY TO THE ASSESSEE. FURTHER, SHI R ANIL AGRAWAL WAS NOT A DIRECTOR OF M/S RUTRON INTERNATIONAL LTD. AS PERCEIVED BY THE AO AND THEREFORE, THE ENTIRE FINDING OF THE AO IS WITH OUT ANY CORROBORATIVE EVIDENCE OR TANGIBLE MATERIAL. 6. THE ASSESSEE HAS SPECIFICALLY DEMANDED THE CROSS EXAMINED TO SHRI ANIL AGRAWAL WHICH WAS DENIED BY THE AO AS UNDER :- (II) THE ASSESSEES PLEAS THAT EFFECTIVE OPPORTUNI TY MAY BE PROVIDED TO CROSS EXAMINATION. IN THIS REGARD, IT IS POINTED OUT THAT THE HONBLE SUPREME COURT IN THE CASE OF C.VASANTLAL & CO. V/S CIT 45 ITR 206 (SC) (3 JUDGE BENCH) HAS OBSERVED THAT THE ITO IS NOT BOUND BY ANY TECHNICA L RULES OF THE LAW OF EVIDENCE. IT IS OPEN TO HIM TO COLLECT MATERIAL TO FACILITATE ASSESSMENT EVEN BY PRIVATE ENQUIRY. THUS, IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN CASE OF CCE VS. ANDAMAN TIMBER INDUSTRIES (SUPRA) THE ASSESSMENT BA SED ON STATEMENT WITHOUT GIVING AN OPPORTUNITY IS NOT SUSTAINABLE IN LAW. WE FURTHER NOTE THAT THE ASSESSEE PRODUCED COPY OF AFFIDAVIT OF SHR I ANIL AGRAWAL WHO HAS RETRACTED HIS STATEMENT BEFORE THE INVESTIGATION WI NG, KOLKATA HOWEVER, ITA 17/JP/2018_ ITO VS KAPIL MITTAL 17 WITHOUT GOING INTO CONTROVERSY OF THE RETRACTION OF THE STATEMENT WE FIND THAT THE STATEMENT CANNOT BE USED BY THE AO WITHOUT GIVING AN OPPORTUNITY TO CROSS EXAMINATION OF SHRI ANIL AGRAW AL. THE COORDINATE BENCH OF THIS TRIBUNAL IN CASE OF PRAMOD JAIN AND O THERS VS. DCIT (SUPRA) WHOLE DEALING WITH AN IDENTICAL ISSUE AS HELD IN PA RA 6 TO 8 AS UNDER:- 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. THE ASSESSEE PURCHASES 800 EQUITY SHARE S M/S GRAVITY BARTER LTD. FOR A CONSIDERATION OF RS. 4 LACS THE ASSESSEE HAS PRODUCED THE PURCHASE BILL OF THE SHARES PURCHASE FROM M/S WINALL VINIMAY PVT. LTD. WHICH SHOWS THAT THE ASSESSEE PURCHASE 800 EQUITY SHARES HAVING FACE VALUE OF RS. 10/- EACH M/S GRAVITY 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 PRICE OF RS. 500 PER SHARE ITSELF SHOWS THAT IT WAS NOT A TRANSACTION OF PURCHASE OF PENNY STOCK. THESE SHARES WERE DULY REFLECTED IN TH E BALANCE 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 EVIDENT FROM THE BANK ACCOUNT OF THE ASSESSEE AT PAGE 40 OF THE PAPER BOOK. IN T HE MEAN TIME THE SAID M/S GRAVITY BARTER PVT. LTD. CHANGED ITS STATUS FROM PR IVATE LIMITED TO A PUBLIC LIMITED AND FRESH CERTIFICATE WAS ISSUED BY THE REG ISTRAR OF COMPANY ON 05.02.2011 WHICH IS PLACED AT PAGE 43 OF THE PAPER BOOK. THEREFORE, THERE IS NO REASON TO DISBELIEF THE FACT OF FRESH CERTIFICAT E ISSUED BY THE REGISTRAR OF COMPANIES ON 05.02.2011 AND HENCE, THE DATE MENTION ED IN THE ORDER OF THE HONBLE KOLKATA HIGH COURT AS 18.04.2011 APPEARS TO BE TYPOGRAPHICAL MISTAKE. EVEN OTHERWISE THESE TWO DATES DO NOT HAVE ANY EFFECT ON THE GENUINENESS OF THE TRANSACTIONS OF PURCHASE OF EQUI TY SHARES BY THE ASSESSEE OF M/S GRAVITY BARTER PVT. LTD. THE ASSESSEE THOUGH PRODUCED ALL THE RELEVANT RECORDS AND EVIDENCES RIGHT FROM THE PURCHASE BILLS , CERTIFICATE ISSUED BY THE REGISTRAR ABOUT THE CHANGE OF NAME, THE COMMUNICATI ON BETWEEN THE ASSESSEE AND THE SELLER OF THE SHARES AND THEREAFTE R, THE AMALGAMATION OF M/S GRAVITY BARTER LTD. WITH M/S OASIS CINE COMMUNI CATION LTD. WHICH WAS DULY APPROVED BY THE HONBLE HIGH COURT VIDE ORDER DATED 28.8.2011. THE ASSESSEE IN THE MEAN TIME GOT THE PHYSICAL SHARE CE RTIFICATE DEMATERIALIZED INTO DEMAT ACCOUNT ON 16.02.2012. THERE IS NO REASO N TO DOUBT THE ALLOTMENT OF THE SHARES TO THE ASSESSEE AFTER AMALG AMATION TOOK PLACE BETWEEN M/S GRAVITY BARTER LTD. AND M/S OASIS CINE COMMUNICATION LTD. AND SUBSEQUENT TO AMALGAMATION THE ASSESSEE WAS ALL OTTED SHARES OF M/S OASIS CINE COMMUNICATION LTD. ON 04.02.2012. HENCE, THE ALLOTMENT OF 35,200 EQUITY SHARES OF M/S OASIS CINE COMMUNICATIO N LTD. CANNOT BE DOUBTED OR DISPUTED AS THESE SHARES WERE ISSUED POS T AMALGAMATION AND BY ITA 17/JP/2018_ ITO VS KAPIL MITTAL 18 A LISTED COMPANY. IT IS ALSO NOT IN DISPUTE THAT TH ESE SHARES OF M/S OASIS CINE COMMUNICATION LTD. WERE ISSUED IN EXCHANGE OF THE S HARES HELD BY THE ASSESSEE OF M/S GRAVITY BARTER LTD. THEREFORE, ONCE THE SHARES ISSUED BY M/S OASIS CINE COMMUNICATION LTD. CANNOT BE DOUBTED THE N THE HOLDING OF THE SHARES OF THE M/S GRAVITY BARTER LTD. BY THE ASSESS EE CORRESPONDINGLY CANNOT BE DOUBTED BECAUSE OF THE REASONS THAT THE SHARES O F M/S OASIS CINE COMMUNICATION LTD. COULD BE ALLOTTED ONLY IN EXCHAN GE OF SHARES OF M/S GRAVITY BARTER LTD. THE HOLDING THE SHARES OF M/S G RAVITY BARTER LTD. AND THE ALLOTMENT OF SHARES M/S OASIS CINE COMMUNICATION LT D. ARE DIRECTLY INTERCONNECTED. IN THE ABSENCE OF HOLDING OF SHARES M/S GRAVITY BARTER LTD. THE SHARES OF THE M/S OASIS CINE COMMUNICATION LTD. COULD NOT BE ISSUED OR ALLOTTED TO THE ASSESSEE. THEREFORE, HOLDING OF THE SHARES BY THE ASSESSEE 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 D EMAT ACCOUNT, THEREFORE, ON THE DATE OF ALLOTMENT OF SHARE OF M/S OASIS CINE COMMUNICATION LTD THE ASSESSEE WAS HOLDING THESE SHARES AND PRIOR TO THA T THE ASSESSEE WAS HOLDING THE SHARES OF M/S GRAVITY BARTER LTD. ON EX CHANGE OF THE SAME THE SHARES OF M/S OASIS CINE COMMUNICATION LTD. WERE I SSUED TO THE ASSESSEE. THE ASSESSING OFFICER HAS DOUBTED THE GENUINENESS O F THE TRANSACTIONS HOWEVER, ONCE THE 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 THEN THE HOLDING OF SHARES OF M/S GRAVITY BARTER LTD. ALSO C ANNOT BE DISPUTE BECAUSE OF THE FACT THAT WITHOUT HOLDING OF THE SAME THE SH ARES 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 GEN UINENESS OF THE TRANSACTION DOES NOT ARISE HOWEVER, THE PURCHASE CO NSIDERATION CAN BE DOUBTED BY THE AO IF THE SHARES WERE CLAIMED TO HAV E BEEN PURCHASED AGAINST CONSIDERATION PAID IN CASH WHICH IS NOT IN CASE OF THE ASSESSEE. THE ASSESSEE HAS PAID PURCHASE CONSIDERATION THROUGH CH EQUE AND THEREFORE, EVEN IF THE SAID CONSIDERATION IS FOUND TO BE VERY LESS IN COMPARISON TO THE SALE PRICE AT THE TIME OF SALE OF SHARES IN THE ABS ENCE 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 PURCHASE CONSIDERATION PAID BY THE ASSESSEE CANNOT BE DOUBTE D IN THE ABSENCE OF ANY CORROBORATING EVIDENCE. THE ASSESSING OFFICER HAS N OT DISPUTED THAT THE FAIR MARKET VALUE OF THE SHARES OF M/S GRAVITY BARTER LT D. WAS MORE THAN THE PURCHASE PRICE CLAIMED BY THE ASSESSEE. IT MAY BE A CASE THAT ENSURING MERGER/AMALGAMATION OF THE SAID COMPANY WITH M/S OA SIS CINE COMMUNICATION LTD. THE ASSESSEE MIGHT HAVE ANTICIPA NT THE EXCEPTIONAL APPRECIATION IN THE SHARE PRICE DUE TO EXTRAORDINAR Y EVENT OF MERGER/ ITA 17/JP/2018_ ITO VS KAPIL MITTAL 19 AMALGAMATION. HOWEVER, THE SAME CANNOT BE A REASON FOR DOUBTING GENUINENESS OF THE TRANSACTION IF THE MOTIVE OF PUR CHASE 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 PAYIN G SHARE APPLICATION MONEY OF RS. 5 LACS WHICH IS DULY REFLECTED IN THE BANK ACCOUNT OF THE ASSESSEE AS PAID ON 28.03.2011. THEREFORE, THE PAYM ENT OF SHARE APPLICATION MONEY HAS BEEN DULY ESTABLISHED BY THE ASSESSEE THR OUGH HIS BANK ACCOUNT FOR ALLOTMENT OF SHARES OF 50,000 EQUITY SHARES OF M/S PARIDHI PROPERTIES LTD. THE SHARE ALLOTTED IN PRIVATE PLACEMENT AS PER OF R S. 10/- CANNOT BE TERMED AS PENNY STOCK. THE AO DOUBTED THAT THE ENTIRE PROC ESS OF APPLICATION AND ALLOTMENT OF SHARES AS IT HAVE BEEN COMPLETED WITHI N A SHORT DURATION OF 5 DAYS, WHICH IN THE OPINION OF THE AO IS NOT POSSIBL E IN ORDINARY COURSE. HOWEVER, WHEN THE ASSESSEE HAS PRODUCED THE RECORD INCLUDING THE SHARE APPLICATION, PAYMENT OF SHARE APPLICATION MONEY, AL LOTMENT OF SHARE THEN MERELY BECAUSE OF A SHORT PERIOD OF TIME WILL NOT B E A SUFFICIENT REASON TO HOLD THAT THE TRANSACTION IS BOGUS. THE SHARES ALLO TTED TO THE ASSESSEE VIDE SHARE CERTIFICATE DATED 31.03.2011 WERE DEMATERIALI ZED ON 21.10.2011, THEREFORE, ON THE DATE OF DEMATERIALIZATION OF THE SHARES THE HOLDING OF THE SHARES OF THE ASSESSEE CANNOT BE DOUBTED AND HENCE THE ACQUISITION OF THE SHARES OF THE ASSESSEE CANNOT BE TREATED AS A BOGUS TRANSACTION. NOBODY CAN HAVE THE SHARES IN HIS OWN NAME IN DEMANT ACCOU NT WITHOUT ACQUIRING OR ALLOTMENT THROUGH DUE PROCESS HENCE, EXCEPT THE PURCHASE CONSIDERATION PAID BY THE ASSESSEE HOLDING OF SHARES CANNOT BE DO UBTED WHEN THE ASSESSEE HAS PRODUCED ALL THE RELEVANT RECORD OF ISSUING OF ALLOTMENT OF SHARES, PAYMENT OF SHARE APPLICATION MONEY THROUGH BANK, SH ARE CERTIFICATE AND DEMAT ACCOUNT SHOWING THE SHARES CREDITED IN THE DE MAT ACCOUNT OF THE ASSESSEE ON DEMATERIALIZATION. THE SAID COMPANY M/S PARIDHI PROPERTIES LTD. WAS SUBSEQUENTLY MERGED WITH M/S LUMINAIRE TECHNOLO GIES LTD. VIDE SCHEME APPROVED BY THE HONBLE BOMBAY HIGH COURT OR DER DATED 27.07.2012. HENCE, THE ASSESSEE GOT ALLOTTED THE EQ UITY SHARES OF M/S LUMINAIRE TECHNOLOGIES LTD. AS PER SWAP RATIO APPRO VED IN THE SCHEME AND CONSEQUENTLY THE ASSESSEE WAS ALLOTTED 5 LACS SHARE OF RS. 1/- EACH ON M/S LUMINAIRE TECHNOLOGIES LTD. THE EVIDENCE PRODUCED B Y THE ASSESSEE LEAVE NO SCOPE OF ANY DOUBT ABOUT THE HOLDING OF THE SHARES BY THE ASSESSEE. 8. AS REGARDS THE PURCHASE CONSIDERATION WHEN THE A SSESSEE HAS SHOWN THE SHARE APPLICATION MONEY PAID THROUGH HIS BANK A CCOUNT AND THE AO HAS NOT BROUGHT ON RECORD ANY MATERIAL TO SHOW THAT APA RT FROM THE SHARE APPLICATION MONEY PAID THROUGH BANK ACCOUNT THE ASS ESSEE HAS BROUGHT HIS ITA 17/JP/2018_ ITO VS KAPIL MITTAL 20 OWN UNACCOUNTED MONEY BACK AS LONG TERM CAPITAL GAI N. IT IS ALSO PERTINENT TO NOTE THAT THE SHARES OF M/S OASIS CINE COMMUNICA TION LTD. ARE STILL HELD BY THE ASSESSEE IN ITS DEMAT ACCOUNT TO THE EXTENT OF 17,200 SHARES AND THEREFORE, THE HOLDING OF THE SHARES BY ANY PARAMET ER OR STRETCH OF IMAGINATION CANNOT BE DOUBTED. THE AO HAS PASSED TH E ASSESSMENT YEAR BASED ON THE STATEMENT OF SHRI DEEPAK PATWARI RECOR DED BY THE INVESTIGATION WING OF KOLKATA HOWEVER, THE ASSESSEE HAS SPECIFICALLY DEMANDED THE CROSS EXAMINATION OF SHRI DEEPAK PATW ARI VIDE LETTER DATED 15.03.2016 SPECIFICALLY IN PARAS 3 AND 4 AS REPRODU CED BY THE AO AT PAGE NO. 7 OF THE ASSESSMENT ORDER AS UNDER:- 3. SINCE, THE SHARES WERE ALLOTTED BY THE COMPANY THROUGH PRIVATE PLACEMENT AFTER COMPLETING THE FORMALITIES OF ROC A ND WERE SOLD THROUGH THE RECOGNIZED BOMBAY STOCK EXCHAGE (BSE) THERE IS NO QUESTION OF KNOWING INDIVIDUAL PERSONS OR COMPANY OFFICIAL PERSONALLY I N THE WHOLE PROCESS, SO THE ASSESSEE IS NOT IN POSITION TO PRODUCE ANY ONE FOR CROSS EXAMINATION BEFORE YOUR GOOD SELF. SINCE YOUR GOOD SELF HAS GOT THE AU THORITY, WE HUMBLY REQUEST YOU TO KINDLY ISSUE THE NOTICE U/S 131 OF T HE INCOME TAX ACT 1961 TO THE CONCERNED INDIVIDUAL PERSONS OR COMPANY OFFICIA LS FOR CROSS EXAMINATION. PLEASE NOTE THAT THE ASSESSEE IS READY TO BEAR THE COST OF THEIR TRAVELLING IN THIS REGARDS. 4. AS REGARD YOUR OPPORTUNITY GIVEN TO US TO READ T HE RECORDED STATEMENT OF SHRI DEEPAK PATWARI AND TO PRODUCE HIM FROM THE CRO SS EXAMINATION BEFORE YOUR GOOD SELF, WE HAVE TO SUBMIT THAT FROM THE REA DING OF THE STATEMENTS OF SHRI DEEPAK PATWARI IT IS CLEAR THAT HE HAS NEVER T AKEN THE NAME OF THE ASSESSEE, NOR THE ASSESSEE IS AWARE OF ANY SHRI DEE PAK PATWARI NEITHER HE HAS MADE ANY TRANSACTION WITH HIM, SO IN WHAT CAPAC ITY HE CAN CALL HIM FOR CROSS EXAMINATION BEFORE YOUR GOOD SELF. SINCE YOUR GOOD SELF HAS GOT THE AUTHORITY, WE HUMBLY REQUEST YOUTO KINDLY ISSUE THE NOTICE U/S 131 OF THE INCOME TAX ACT 1961 TO HIM ALSO FOR CROSS EXAMINATI ON. WE ALSO REQUEST YOUR GOOD SELF TO KINGLY PROVIDE US THE COPY OF STATEMEN TS OF SHRI DEEPAK PATWARI ALONG WITH THE OTHER RELEVANT DOCUMENTS. PLEASE NOT E THAT THE ASSESSEE IS READY TO BEAR THE COST OF HIS TRAVELLING IN THIS RE GARD. IT IS MANIFEST FROM THE ASSESSEES REPLY TO SHOW CA USE NOTICE THAT THE ASSESSEE HAD SPECIFICALLY DEMANDED THE CROSS EXAMIN ATION OF SHRI DEEPAK PATWARI HOWEVER, THE ASSESSING OFFICER DID NOT OFFE R THE OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE SHRI DEEPAK PATWARI. FURT HER, THE AO ASKED THE ASSESSEE TO PRODUCE THE PRINCIPAL OFFICERS OF THE M /S GRAVITY BARTER LTD. AND M/S PARIDHI PROPERTIES LTD. HOWEVER, IN OUR VIEW IF THE ASSESSING OFFICER WANTED TO EXAMINE THE PRINCIPAL OFFICERS OF THOSE C OMPANIES HE WAS HAVING ITA 17/JP/2018_ ITO VS KAPIL MITTAL 21 THE AUTHORITY TO SUMMON THEM AND RECORD THEIR STATE MENTS INSTEAD OF SHIFTING BURDEN ON THE ASSESSEE. IT IS NOT EXPECTED FROM THE ASSESSEE INDIVIDUAL TO PRODUCE THE PRINCIPAL OFFICERS OF THE COMPANIES RATHER THE AO OUGHT TO HAVE SUMMONED THEM IF THE EXAMINATION OF T HE OFFICERS WERE CONSIDERED AS NECESSARY BY THE AO. HENCE, IT WAS IM PROPER AND UNJUSTIFIED ON THE PART OF THE AO TO ASKED THE ASSESSEE TO PROD UCE THE PRINCIPAL OFFICERS OF THOSE COMPANIES. AS REGARDS THE NON GRANT OF OPP ORTUNITY TO CROSS EXAMINE, THE HONBLE SUPREME COURT IN CASE OF ANDAM AN TIMBER INDUSTRIES VS. CCE (SUPRA) WHILE DEALING WITH THE ISSUE HAS HE LD IN PARA 5 TO 8 AS UNDER: 5. WE HAVE HEARD MR. KAVIN GULATI, LEARNED SENIOR COUNSEL APPEARING FOR THE ASSESSEE, AND MR. K. RADHAKRISHNAN, LEARNED SEN IOR COUNSEL WHO APPEARED FOR THE REVENUE. 6. ACCORDING TO US, NOT ALLOWING THE ASSESSEE TO CR OSS-EXAMINE THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENTS OF THOSE WITNESSES WERE MADE THE BASIS OF THE IMPUGNED ORDER IS A SERI OUS FLAW WHICH MAKES THE ORDER NULLITY INASMUCH AS IT AMOUNTED TO VIOLAT ION OF PRINCIPLES OF NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTED. IT IS TO BE BORNE IN MIND THAT THE ORDER OF THE COMMISSIONER WA S BASED UPON THE STATEMENTS GIVEN BY THE AFORESAID TWO WITNESSES. EV EN WHEN THE ASSESSEE DISPUTED THE CORRECTNESS OF THE STATEMENTS AND WANT ED TO CROSS-EXAMINE, THE ADJUDICATING AUTHORITY DID NOT GRANT THIS OPPOR TUNITY TO THE ASSESSEE. IT WOULD BE PERTINENT TO NOTE THAT IN THE IMPUGNED ORD ER PASSED BY THE ADJUDICATING AUTHORITY HE HAS SPECIFICALLY MENTIONE D THAT SUCH AN OPPORTUNITY WAS SOUGHT BY THE ASSESSEE. HOWEVER, NO SUCH OPPORTUNITY WAS GRANTED AND THE AFORESAID PLEA IS NOT EVEN DEALT WI TH BY THE ADJUDICATING AUTHORITY. AS FAR AS THE TRIBUNAL IS CONCERNED, WE FIND THAT REJECTION OF THIS PLEA IS TOTALLY UNTENABLE. THE TRIBUNAL HAS SIMPLY STATED THAT CROSS- EXAMINATION OF THE SAID DEALERS COULD NOT HAVE BROU GHT OUT ANY MATERIAL WHICH WOULD NOT BE IN POSSESSION OF THE APPELLANT T HEMSELVES TO EXPLAIN AS TO WHY THEIR EX-FACTORY PRICES REMAIN STATIC. IT WA S NOT FOR THE TRIBUNAL TO HAVE GUESS WORK AS TO FOR WHAT PURPOSES THE APPELLA NT WANTED TO CROSS- EXAMINE THOSE DEALERS AND WHAT EXTRACTION THE APPEL LANT WANTED FROM THEM. 7. AS MENTIONED ABOVE, THE APPELLANT HAD CONTESTED THE TRUTHFULNESS OF THE STATEMENTS OF THESE TWO WITNESSES AND WANTED TO DIS CREDIT THEIR TESTIMONY FOR WHICH PURPOSE IT WANTED TO AVAIL THE OPPORTUNIT Y OF CROSS-EXAMINATION. THAT APART, THE ADJUDICATING AUTHORITY SIMPLY RELIE D UPON THE PRICE LIST AS MAINTAINED AT THE DEPOT TO DETERMINE THE PRICE FOR THE PURPOSE OF LEVY OF ITA 17/JP/2018_ ITO VS KAPIL MITTAL 22 EXCISE DUTY. WHETHER THE GOODS WERE, IN FACT, SOLD TO THE SAID DEALERS/WITNESSES AT THE PRICE WHICH IS MENTIONED I N THE PRICE LIST ITSELF COULD BE THE SUBJECT MATTER OF CROSS-EXAMINATION. THEREFO RE, IT WAS NOT FOR THE ADJUDICATING AUTHORITY TO PRESUPPOSE AS TO WHAT COU LD BE THE SUBJECT MATTER OF THE CROSS-EXAMINATION AND MAKE THE REMARKS AS ME NTIONED ABOVE. WE MAY ALSO POINT OUT THAT ON AN EARLIER OCCASION WHEN THE MATTER CAME BEFORE THIS COURT IN CIVIL APPEAL NO. 2216 OF 2000, ORDER DATED 17.03.2005 WAS PASSED REMITTING THE CASE BACK TO THE TRIBUNAL WITH THE DIRECTIONS TO DECIDE THE APPEAL ON MERITS GIVING ITS REASONS FOR ACCEPTI NG OR REJECTING THE SUBMISSIONS. 8. IN VIEW THE ABOVE, WE ARE OF THE OPINION THAT IF THE TESTIMONY OF THESE TWO WITNESSES IS DISCREDITED, THERE WAS NO MATERIAL WIT H THE DEPARTMENT ON THE BASIS OF WHICH IT COULD JUSTIFY ITS ACTION, AS THE STATEMENT OF THE AFORESAID TWO WITNESSES WAS THE ONLY BASIS OF ISSUING THE SHO W CAUSE NOTICE. THEREFORE, THE STATEMENT OF WITNESS CANNOT BE SOLE BASIS OF THE ASSESSMENT WITHOUT GIVEN AN OPPORTUNITY OF CROSS EXAMINATION A ND CONSEQUENTLY IT IS A SERIOUS FLAW WHICH RENDERS THE ORDER A NULLITY. THE MUMBAI SPECIAL OF THE TRIBUNAL IN CASE OF GTC INDUSTRIES VS. ACIT (SUPRA) HAD THE OCCASION TO CONSIDER THE ADDITION MADE BY THE AO ON THE BASIS OF SUSPICION AND SURMISES AND OBSERVED IN PAR 46 AS UNDER:- 46. IN SITUATIONS LIKE THIS CASE, ONE MAY FALL INTO REALM OF 'PREPONDERANCE OF PROBABILITY' WHERE THERE ARE MANY PROBABLE FACTORS, SOME IN FAVOUR OF THE ASSESSEE AND SOME MAY GO AGAINST THE ASSESSEE. BUT THE PROBABLE FACTORS HAVE TO BE WEIGHED ON MATERIAL FACTS SO COLLECTED. HERE IN THIS CASE THE MATERIAL FACTS STRONGLY INDICATE A PROBABILITY THAT THE WHOLESALE BUYERS HAD COLLECTED THE PREMIUM MONEY FOR SPENDING IT ON ADVE RTISEMENT AND OTHER EXPENSES AND IT WAS THEIR LIABILITY AS PER THEIR MU TUAL UNDERSTANDING WITH THE ASSESSEE. ANOTHER VERY STRONG PROBABLE FACTOR IS TH AT THE ENTIRE SCHEME OF 'TWIN BRANDING' AND COLLECTION OF PREMIUM WAS SO DE SIGNED THAT ASSESSEE- COMPANY NEED NOT INCUR ADVERTISEMENT EXPENSES AND T HE RESPONSIBILITY FOR SALES PROMOTION AND ADVERTISEMENT LIES WHOLLY UPON WHOLESALE BUYERS WHO WILL BORNE OUT THESE EXPENSES FROM ALLEGED COLLECTI ON OF PREMIUM. THE PROBABLE FACTORS COULD HAVE GONE AGAINST THE ASSESS EE ONLY IF THERE WOULD HAVE BEEN SOME EVIDENCE FOUND FROM SEVERAL SEARCHES EITHER CONDUCTED BY DRI OR BY THE DEPARTMENT THAT ASSESSEE-COMPANY WAS BENEFICIARY OF ANY SUCH ACCOUNTS. AT LEAST SOMETHING WOULD HAVE BEEN U NEARTHED FROM SUCH GLOBAL LEVEL INVESTIGATION BY TWO CENTRAL GOVERNMEN T AUTHORITIES. IN CASE OF CERTAIN DONATIONS GIVEN TO A CHURCH, ORIGINATING TH ROUGH THESE BENAMI BANK ACCOUNTS ON THE BEHEST OF ONE OF THE EMPLOYEES OF T HE ASSESSEE COMPANY, ITA 17/JP/2018_ ITO VS KAPIL MITTAL 23 DOES NOT IMPLICATE THAT GTC AS A CORPORATE ENTITY W AS HAVING THE CONTROL OF THESE BANK ACCOUNTS COMPLETELY. WITHOUT GOING INTO THE AUTHENTICITY AND VERACITY OF THE STATEMENTS OF THE WITNESSES SMT. NI RMALA SUNDARAM, WE ARE OF THE OPINION THAT THIS ONE INCIDENT OF DONATION T HROUGH BANK ACCOUNTS AT THE DIRECTION OF ONE OF THE EMPLOYEE OF THE COMPANY DOES NOT IMPLICATE THAT THE ENTIRE PREMIUM COLLECTED ALL THROUGHOUT THE COU NTRY AND DEPOSITED IN BENAMI BANK ACCOUNTS ACTUALLY BELONGS TO THE ASSESS EE-COMPANY OR THE ASSESSEE-COMPANY HAD DIRECT CONTROL ON THESE BANK A CCOUNTS. ULTIMATELY, THE ENTIRE CASE OF THE REVENUE HINGES UPON THE PRES UMPTION THAT ASSESSEE IS BOUND TO HAVE SOME LARGE SHARE IN SO-CALLED SECRET MONEY IN THE FORM OF PREMIUM AND ITS CIRCULATION. HOWEVER, THIS PRESUMPT ION OR SUSPICION HOW STRONG IT MAY APPEAR TO BE TRUE, BUT NEEDS TO BE CO RROBORATED BY SOME EVIDENCE TO ESTABLISH A LINK THAT GTC ACTUALLY HAD SOME KIND OF A SHARE IN SUCH SECRET MONEY. IT IS QUITE A TRITE LAW THAT SUS PICION HOWSOEVER STRONG MAY BE BUT CANNOT BE THE BASIS OF ADDITION EXCEPT F OR SOME MATERIAL EVIDENCE ON RECORD. THE THEORY OF 'PREPONDERANCE OF PROBABILITY' IS APPLIED TO WEIGH THE EVIDENCES OF EITHER SIDE AND DRAW A CONCL USION IN FAVOUR OF A PARTY WHICH HAS MORE FAVOURABLE FACTORS IN HIS SIDE. THE CONCLUSIONS HAVE TO BE DRAWN ON THE BASIS OF CERTAIN ADMITTED FACTS AND MA TERIALS AND NOT ON THE BASIS OF PRESUMPTION OF FACTS THAT MIGHT GO AGAINST ASSESSEE. ONCE NOTHING HAS BEEN PROVED AGAINST THE ASSESSEE WITH AID OF AN Y DIRECT MATERIAL ESPECIALLY WHEN VARIOUS ROUNDS OF INVESTIGATION HAV E BEEN CARRIED OUT, THEN NOTHING CAN BE IMPLICATED AGAINST THE ASSESSEE. THEREFORE, WHEN THE ASSESSING OFFICER HAS NOT BROUG HT ANY MATERIAL ON RECORD TO SHOW THAT THE ASSESSEE HAS PAID OVER AND ABOVE THE PURCHASE CONSIDERATION AS CLAIMED AND EVIDENT FROM THE BANK ACCOUNT THEN, IN THE ABSENCE OF ANY EVIDENCE IT CANNOT BE HELD THAT THE ASSESSEE HAS INTRODUCED HIS OWN UNACCOUNTED MONEY BY WAY OF BOGUS LONG TERM CAPITAL GAIN. THE HONBLE JURISDICTION HIGH COURT IN CASE OF CIT VS. SMT. POOJA AGRAWAL (SUPRA) HAS UPHELD THE FINDING OF THE TRIBUNAL ON THIS ISSU E IN PARA 12 AS UNDER:- 12. HOWEVER, COUNSEL FOR THE RESPONDENT HAS TAKEN US TO THE ORDER OF CIT(A) AND ALSO TO THE ORDER OF TRIBUNAL AND CONTENDED THA T IN VIEW OF THE FINDING REACHED, WHICH WAS DONE THROUGH STOCK EXCHANGE AND TAKING INTO CONSIDERATION THE REVENUE TRANSACTIONS, THE ADDITIO N MADE WAS DELETED BY THE TRIBUNAL OBSERVING AS UNDER:- 'CONTENTION OF THE AR IS CONSIDERED. ONE OF THE MAI N REASONS FOR NOT ACCEPTING THE GENUINENESS OF THE TRANSACTIONS DECLA RED BY THE APPELLANT THAT AT THE TIME OF SURVEY THE APPELLANT IN HIS STATEMEN T DENIED HAVING MADE ANY TRANSACTIONS IN SHARES. HOWEVER, SUBSEQUENTLY THE F ACTS CAME ON RECORD THAT ITA 17/JP/2018_ ITO VS KAPIL MITTAL 24 THE APPELLANT HAD TRANSACTED NOT ONLY IN THE SHARES WHICH ARE DISPUTED BUT SHARES OF VARIOUS OTHER COMPANIES LIKE SATYAM COMPU TERS, HCL, IPC L, BPCL AND TATA TEA ETC. REGARDING THE TRANSACTIONS IN QUE STION VARIOUS DETAILS LIKE COPY OF CONTRACT NOTE REGARDING PURCHASE AND SALE O F SHARES OF LIMTEX AND KONARK COMMERCE & IND. LTD., ASSESSEE'S ACCOUNT WIT H P.K. AGARWAL & CO. SHARE BROKER, COMPANY'S MASTER DETAILS FROM REGISTR AR OF COMPANIES, KOLKATA WERE FILED. COPY OF DEPOSITORY A/C OR DEMAT ACCOUNT WITH ALANK RIT ASSIGNMENT LTD., A SUBSIDIARY OF NSDL WAS ALSO FILED WHICH SHOWS THAT THE TRANSACTIONS WERE MADE THROUGH DEMAT A/C. WHEN THE RELEVANT DOCUMENTS ARE AVAILABLE THE FACT OF TRANSACTIONS ENTERED INTO CANNOT BE DENIED SIMPLY ON THE GROUND THAT IN HIS STATEMENT THE APPELLANT DENIED HAVING MADE A NY TRANSACTIONS IN SHARES. THE PAYMENTS AND RECEIPTS ARE MADE THROUGH A/C PAYEE CHEQUES AND THE TRANSACTIONS ARE ROUTED THROUGH KOLKATA STOCK E XCHANGE. THERE IS NO EVIDENCE THAT THE CASH HAS GONE BACK IN APPELLANTS' S ACCOUNT. PRIMA FACIE THE TRANSACTION WHICH ARE SUPPORTED BY DOCUMENTS AP PEAR TO BE GENUINE TRANSACTIONS. THE AO HAS DISCUSSED MODUS OPERANDI I N SOME SHAM TRANSACTIONS WHICH WERE DETECTED IN THE SEARCH CASE OF B.C. PUROHIT GROUP. THE AO HAS ALSO STATED IN THE ASSESSMENT ORDER ITSE LF WHILE DISCUSSING THE MODUS OPERANDI THAT ACCOMMODATION ENTRIES OF LONG T ERM CAPITAL GAIN WERE PURCHASED AS LONG TERM CAPITAL GAIN EITHER WAS EXEM PTED FROM TAX OR WAS TAXABLE AT A LOWER RATE. AS THE APPELLANT'S CASE IS OF SHORT TERM CAPITAL GAIN, IT DOES NOT EXACTLY FALL UNDER THAT CATEGORY OF ACC OMMODATION TRANSACTIONS. FURTHER AS PER THE REPORT OF DCIT, CENTRAL CIRCLE-3 SH. P.K. AGARWAL WAS FOUND TO BE AN ENTRY PROVIDER AS STATED BY SH. PAWAN PURO HIT OF B.C. PURIHIT AND CO. GROUP. THE AR MADE SUBMISSION BEFORE THE AO THAT TH E FACT WAS NOT CORRECT AS IN THE STATEMENT OF SH. PAWAN PUROHIT THERE IS N O MENTION OF SH. P. K. AGARWAL. IT WAS ALSO SUBMITTED THAT THERE WAS NO ME NTION OF SH. P. K. AGARWAL IN THE ORDER OF SETTLEMENT COMMISSION IN TH E CASE OF SH. SUSHIL KUMAR PUROHIT. COPY OF THE ORDER OF SETTLEMENT COMM ISSION WAS SUBMITTED. THE AO HAS FAILED TO COUNTER THE OBJECTIONS RAISED BY THE APPELLANT DURING THE ASSESSMENT PROCEEDINGS. SIMPLY MENTIONING THAT THESE FINDINGS ARE IN THE APPRAISAL REPORT AND APPRAISAL REPORT IS MADE B Y THE INVESTING WING AFTER CONSIDERING ALL THEMATERIAL FACTS AVAILABLE O N RECORD DOES NOT HELP MUCH. THE AO HAS FAILED TO PROVE THROUGH ANY INDEPE NDENT INQUIRY OR RELYING ON SOME MATERIAL THAT THE TRANSACTIONS MADE BY THE APPELLANT THROUGH SHARE BROKER P.K. AGARWAL WERE NON-GENUINE OR THERE WAS A NY ADVERSE MENTION ABOUT THE TRANSACTION IN QUESTION IN STATEMENT OF S H. PAWAN PUROHI. SIMPLY BECAUSE IN THE SHAM TRANSACTIONS BANK A/C WERE OPEN ED WITH HDFC BANK AND THE APPELLANT HAS ALSO RECEIVED SHORT TERM CAPI TAL GAIN IN HIS ACCOUNT WITH HDFC BANK DOES NOT ESTABLISH THAT THE TRANSACT ION MADE BY THE ITA 17/JP/2018_ ITO VS KAPIL MITTAL 25 APPELLANT WERE NON GENUINE. CONSIDERING ALL THESE F ACTS THE SHARE TRANSACTIONS MADE THROUGH SHRI P.K. AGARWAL CANNOT BE HELD AS NON-GENUINE. CONSEQUENTLY DENYING THE CLAIM OF SHORT TERM CAPITA L GAIN (6 OF 6) [ ITA- 385/2011] MADE BY THE APPELLANT BEFORE THE AO IS NO T APPROVED. THE AO IS THEREFORE, DIRECTED TO ACCEPT CLAIM OF SHORT TERM C APITAL GAIN AS SHOWN BY THE APPELLANT.' IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE ADDITION MADE BY THE AO IS BASED ON MERE SUSPICION AND SURMISES WITHOUT ANY COGENT MATERIAL TO SHOW THAT THE ASSESSEE HAS BROUGHT BACK HIS UNACCOUNTED INCOME IN THE SHAPE OF LONG TERM CAPITAL GAIN. ON THE OTHER HAND, THE ASSESSEE HAS BROUGHT ALL THE RELEVANT MATERIAL TO SUBSTANTIATE ITS CLAIM THAT TR ANSACTIONS OF THE PURCHASE AND SALE OF SHARES ARE GENUINE. EVEN OTHERWISE THE HOLDING OF THE SHARES BY THE ASSESSEE AT THE TIME OF ALLOTMENT SUBSEQUENT TO THE AMALGAMATION/MERGER IS NOT IN DOUBT, THEREFORE, THE TRANSACTION CANNOT BE HELD AS BOGUS. ACCORDINGLY WE DELETE THE ADDITION M ADE BY THE AO ON THIS ACCOUNT. THUS, IT IS CLEAR THAT THE TRIBUNAL IN THE SAID CAS E HAS ANALYZED AN IDENTICAL ISSUE WHEREIN THE SHARES ALLOTTED IN THE PRIVATE PL ACEMENT @ RS. 10 AT PAR OF FACE VALUE WHICH WERE DEMATERIALIZED AND THEREAFTER SOLD BY THE ASSESSEE AND ACCORDINGLY THE TRIBUNAL AFTER PLACING RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN CASE OF CCE VS. ANDAMAN TIMBER IN DUSTRIES (SUPRA) AS WELL AS THE DECISION OF HONBLE JURISDICTION HIGH COURT IN CASE OF CIT VS. SMT. POOJA AGARWAL (SUPRA) AS HELD THAT WHEN THE ASSESSING OFF ICER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SHOW THAT THE ASSESSEE HAS PA ID OVER AND ABOVE PURCHASE CONSIDERATION AS CLAIMED AND EVIDENT FROM THE BANK ACCOUNT THEN, IN THE ABSENCE OF ANY EVIDENCE IT CANNOT BE HELD TH AT THE ASSESSEE HAS INTRODUCED HIS OWN UNACCOUNTED MONEY BY WAY OF BOGU S LONG TERM CAPITAL GAIN. SIMILAR IN THE CASE IN HAND THE ASSESSEE HAS PRODUCED THE RELEVANT RECORD TO SHOW THE ALLOTMENT OF SHARES BY THE COMPA NY ON PAYMENT OF CONSIDERATION BY CHEQUE AND THEREFORE, IT IS NOT A CASE OF PAYMENT OF CONSIDERATION BY IN CASH. BUT THE TRANSACTION IS ES TABLISHED FROM THE EVIDENCE AND RECORD WHICH CANNOT BE MANIPULATED AS ALL THE ENTRIES ARE PART ITA 17/JP/2018_ ITO VS KAPIL MITTAL 26 OF THE BANK ACCOUNT OF THE ASSESSEE AND THE ASSESSE E DEMATERIALIZED THE SHARES IN THE D-MAT ACCOUNT WHICH IS ALSO AN INDEPE NDENT MATERIAL AND EVIDENCE CANNOT BE MANIPULATED. THEREFORE, THE HOLD ING OF THE SHARES BY THE ASSESSEE CANNOT BE DOUBTED AND THE FINDING OF THE A O IS BASED MERELY ON THE SUSPICION AND SURMISES WITHOUT ANY COGENT MATERIAL TO SHOW THAT THE ASSESSEE HAS INTRODUCTION HIS UNACCOUNTED INCOME IN THE SHAPE OF LONG TERM CAPITAL GAIN. WE FIND THAT THE LD. CIT(A) HAS ALSO REFERRED TO SEBI ENQUIRY AGAINST THE M/S ANAND RATHI SHARE AND STOCK BROKER S LTD. HOWEVER, WE NOTE THAT THE SAID ENQUIRY WAS REGARDING FINANCIAL IRREGULARITIES AND USE OF FUND BELONGING TO THE CLIENTS FOR THE PURPOSE OTHER THAN, THE PURCHASE OF SHARES ON BEHALF OF THE CLIENTS. THEREFORE, THE SUB JECT MATTER OF THE ENQUIRY HAS NO CONNECTION WITH THE TRANSACTION OF BOGUS LON G TERM CAPITAL GAIN. THE DECISIONS REPLIED UPON THE LD. DR IN CASE OF SANJAY BIMALCHAND JAIN VS. PR. CIT (SUPRA) IS NOT APPLICABLE IN THE FACTS OF THE PRESE NT CASE AS THE SAID DECISION IS IN RESPECT PENNY STOCK PURCHASE BY THE ASSESSEE FROM A PERSONS WHO WAS FOUND TO BE INDULGED IN PROVIDING BOGUS CAPITAL GAI N ENTRIES WHEREAS IN THE CASE OF THE ASSESSEE THE SHARES WERE ALLOTTED TO TH E ASSESSEE BY THE COMPANY AT PAR OF FACE VALUE. HENCE, IN VIEW OF THE FACTS AND CIRCUMSTANCES WHEN WE HOLD THAT THE ORDER OF THE ASSESSING OFFICE R TREATING THE LONG TERM CAPITAL GAIN AS BOGUS AND CONSEQUENTIAL ADDITION MA DE TO THE TOTAL INCOME OF THE ASSESSEE IS NOT SUSTAINABLE. HENCE, WE DELET E THE ADDITION MADE BY THE AO ON THIS ACCOUNT. THEREFORE, ON ANALYZING OF THE FACTS AS WELL AS THE E VIDENCE PRODUCED BY THE ASSESSEE, WE FIND THAT THE ASSESSING OFFICER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO CONTROVERT THE FA CT DULY ESTABLISHED BY THE SUPPORTING EVIDENCE OF PURCHASE BILLS, PAYMENT OF CONSIDERATION THROUGH BANK, DEMATERIALIZATION OF SH ARES IN THE DEMAT ACCOUNT, ALLOTMENT OF THE SHARES AMALGAMATED NEW ENTITY IN ITA 17/JP/2018_ ITO VS KAPIL MITTAL 27 LIEU OF THE EARLIER TWO COMPANIES OF EQUAL NUMBER O F SHARES. SALE OF SHARES FROM THE DEMAT ACCOUNT THROUGH STOCK EXCHANGE AND AT THE PREVAILING PRICE AS ON THE DATE OF SALE AND FURTHER PAYMENT OF STT ON THE TRANSACTION OF SALE HAS BEEN DULY ESTABLISHE D. IN ABSENCE OF ANY CONTRARY FACT, THE MERE RELIANCE BY THE ASSESSI NG OFFICER ON THE REPORT OF INVESTIGATION WING, KOLKATA IS NOT SUFFIC IENT TO ESTABLISH THE FACT THAT THE TRANSACTION IS BOGUS. THE FINDING OF THE ASSESSING OFFICER IS BASED MERELY ON THE SUSPICION AND SURMIS ES WITHOUT ANY TANGIBLE MATERIAL TO SHOW THAT THE ASSESSEE HAS INTR ODUCED HIS OWN UNACCOUNTED INCOME IN THE SHARE OF LONG TERM CAPITA L GAIN EVEN OTHERWISE THE RELIANCE OF THE STATEMENTS RECORDED BY THE INVESTIGATION WING, KOLKATA WHEREIN WITHOUT GIVING AN OPPORTUNITY OF CROSS EXAMINATION IS A COMPLETE VIOLATION OF PRINCI PLES OF NATURAL JUSTICE AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF CCE VS ANDAMAN TIMBER INDUSTRIES (SUPRA). THE COORDINATE BEN CH HAS ALSO FOLLOWED THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. POOJA AGARWAL ORDER DATED 11/09/2017 WHEREIN THE HON'BLE HIGH COURT HAS DULY CONSIDERED THE FACT THA T THE ASSESSING OFFICER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO S HOW THAT THE ASSESSEE HAS PAID OVER AND ABOVE THE PURCHASE CONSI DERATION AS CLAIMED AND EVIDENT FROM THE BANK ACCOUNT. THEREFORE , IN ABSENCE OF ANY EVIDENCE, IT CANNOT BE HELD THAT THE ASSESSE E HAS INTRODUCED HIS OWN UNACCOUNTED MONEY BY WAY OF BOGUS LONG TERM CAPITAL GAIN. ACCORDINGLY, IN VIEW OF ABOVE FACTS AND CIRCUMSTANCE S, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF THE LD . CIT(A) QUA THIS ISSUE. HENCE, THIS GROUND OF REVENUES APPEAL IS DI SMISSED. ITA 17/JP/2018_ ITO VS KAPIL MITTAL 28 7. GROUND NO. 2 OF THE APPEAL IS REGARDING THE ADDI TION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF NOTIONAL COMMISSION EXPENSES U/S 69C OF THE ACT. WE HAVE HEARD THE LD DR AS WELL AS T HE LD AR OF THE ASSESSEE AND CONSIDERED THE RELEVANT MATERIAL ON RE CORD. THIS IS A CONSEQUENTIAL ISSUE TO THE ADDITION MADE BY THE ASS ESSING OFFICER U/S 68 OF THE ACT TREATING LONG TERM CAPITAL GAIN A S ACCOMMODATION ENTRIES FOR BOGUS CLAIM OF EXEMPT INCOME AND CONSEQ UENTLY THE ASSESSING OFFICER HAS ALSO MADE AN ADDITION ON ACCO UNT OF EXPENDITURE OF RS. 10,68,720/- BEING UNEXPLAINED CO MMISSION EXPENSES ON SUCH TRANSACTION OF ACCOMMODATION ENTRI ES. 8. SINCE THIS IS A CONSEQUENTIAL ISSUE AND THE LD. CIT(A) HAS DECIDED AND SAME IN PARA 6.3 AS UNDER: 6.3 I HAVE CONSIDERED THE ORDER PASSED BY THE A.O. AND SUBMISSIONS FILED BY THE APPELLANT. THIS GROUND OF APPEAL IS THE OFFSHOO T OF THE GROUND OF APPEAL NO. 2, WHICH HAS BEEN ADJUDICATED IN FAVOUR OF THE ASSESSEE. HENCE THERE IS NO BASIS LEFT FOR THE ADDITION OF RS . 10,68,720/- AS POSSIBLE COMMISSION PAID TO BROKERS/INTERMEDIARIES TO ARRANGE FOR THE ACCOMMODATION ENTRY. ACCORDINGLY, THE ADDITION OF R S. 10,68,720/- IS DELETED. AND THE APPELLANTS GROUND OF APPEAL ON TH IS ISSUE IS ALLOWED. BEING A CONSEQUENTIAL ISSUE TO THE ISSUE INVOLVED IN GROUND NO. 1 OF THE APPEAL, THIS GROUND HAS BEEN ADJUDICATED IN FAV OUR OF THE ASSESSEE AND AGAINST THE REVENUE. 4. SINCE THE FACTS AND ISSUE INVOLVED IN THIS CASE ARE UNDISPUTEDLY IDENTICAL TO THE FACTS AND ISSUE INVOLVED IN THE CA SE OF SAURABH MITTAL AND THE ASSESSEE IN BOTH THE CASES ARE ALSO RELATED ASS ESSEES, THEREFORE, OUR ITA 17/JP/2018_ ITO VS KAPIL MITTAL 29 FINDING ON BOTH THE GROUNDS OF REVENUES APPEAL IN THE CASE OF SAURABH MITTAL (SUPRA) SHALL APPLY MUTATIS MUTANDIS. HENCE, BOTH THE GROUNDS OF REVENUES APPEAL STAND DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 29/08/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 29 TH AUGUST, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO, WARD-4, BHARATPUR. 2. IZR;FKHZ @ THE RESPONDENT- SHRI KAPIL MITTAL, DHOLPUR (RAJ). 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 17/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR