Smt. Sheela Ananth, Bengaluru V. The Income Tax Officer, Ward-2(2)(5), Bangalore

ITA 1868/BANG/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9847 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 29-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Opportunity of cross examination; Question of law; Accommodation entries; Set aside; Capital Gains; Bogus
• Section: 68; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI A K GARODIA , ACCOUNTANT MEMBER ITA NO. ASSESSMENT YEAR APPELLANT VS. RESPONDENT 1866/BANG/2019 2015-16 SHRI JOGGERE SAMPANGAPPA ANANTH PAN: ACHPA 5995P THE INCOME TAX OFFICER, WARD 2(2)(4), BANGALORE. 1867/BANG/2019 2015-16 SHRI JOGGERE ANANTH SANTOSH PAN: ATQPS 8847L THE INCOME TAX OFFICER, WARD 2(2)(5), BANGALORE. 1868/BANG/2019 2015-16 SMT. SHEELA ANANTH PAN: AJCPS 9853Q THE INCOME TAX OFFICER, WARD 2(2)(5), BANGALORE. 1869/BANG/2019 2015-16 SMT. MAHALAKSHMI PAN: AYPPM 5776L THE INCOME TAX OFFICER, WARD 2(2)(4), BANGALORE. 1872/BANG/2019 2015-16 SHRI JOGGERE SAMPANGAPPA VENKATESH PAN: ABMPV 6957A THE INCOME TAX OFFICER, WARD 2(2)(5), BANGALORE. C/O. SUDARSHAN SILKS, NO.231, KRISHNA MARKET, CHICKPET, BENGALURU 560 053. DATE OF HEARING : 18 .12 .2019 DATE OF PRONOUNCEMENT : 03 . 01 .20 20 ITA NO.1866 TO 1869 & 1872/BANG/2019 PAGE 2 OF 11 O R D E R PER BENCH THESE ARE APPEALS BY 5 DIFFERENT ASSESSES AGAINST SEPARATE ORDERS ALL DATED 17.07.2019 OF THE CIT(APPEALS)-2, BENGALU RU AND ALL APPEALS RELATE TO ASSESSMENT YEAR 2015-16. 2. THE ISSUE THAT NEEDS TO BE ADJUDICATED IN THESE APPEALS IS AS TO WHETHER THE REVENUE AUTHORITIES WERE JUSTIFIED IN T REATING THE LONG TERM CAPITAL GAIN (LTCG) ON SALE OF SHARES DECLARED BY T HE ASSESSEE AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE INCOME-TAX A CT, 1961 [THE ACT] AND ADDING THE SAME TO THE TOTAL INCOME OF THE ASSESSEE AS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. 3. ALL THE ASSESSES ARE INDIVIDUALS. DURING THE RE LEVANT PREVIOUS YEAR THEY SOLD SHARES OF A COMPANY BY NAME LIFELINE DRUG S & PHARMA LTD. AND DECLARED LTCG ON SALE OF THOSE SHARES. THE LTCG SO DECLARED WAS CLAIMED AS EXEMPT U/S. 10(38) OF THE ACT. 4. THE AO NOTICED THAT THERE WAS AN INVESTIGATION C ARRIED OUT BY THE DIRECTORATE OF INVESTIGATION THROUGHOUT THE COUNTRY IN WHICH IT CAME TO LIGHT THAT THERE WAS AN ORGANIZED RACKET OF GENERATING BO GUS ENTRIES OF LONG-TERM CAPITAL GAIN WHICH IS EXEMPT. THE MODUS OPERANDI WAS TO BUY SHARES OF COMPANIES CONTROLLED BY THE OPERATORS AT A LESS PRI CE AND THEREAFTER RIG THE PRICE OF THE STOCK TO A HIGH LEVEL AND SELL THE SHA RES AND DECLARE LONG-TERM CAPITAL GAIN. ACCORDING TO THE INVESTIGATION CARRIE D OUT BY THE DEPARTMENT, THE OPERATORS WERE DUMMY PAPER COMPANIES AND THE LO NG-TERM CAPITAL GAIN DECLARED AND CLAIMED AS EXEMPT WAS NOTHING BUT ASSE SSEES OWN MONEY WHICH HAS TO BE ADDED U/S. 68 OF THE ACT. 5. BASED ON THE ABOVE SAID INVESTIGATION CARRIED OU T BY THE DIRECTORATE OF INVESTIGATION, KOLKATA, AND THE STATEMENTS OF VA RIOUS OPERATORS, ENTRY ITA NO.1866 TO 1869 & 1872/BANG/2019 PAGE 3 OF 11 PROVIDERS AND STOCK BROKERS ADMITTING ACCOMMODATION ENTRIES OF LONG TERM CAPITAL GAIN, THE AO WAS OF THE VIEW THAT THE LONG- TERM CAPITAL GAIN DECLARED BY THE ASSESSEE HAS TO BE TREATED AS UNEXPLAINED CA SH CREDIT AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ACCORDINGLY, THE AO TREATED THE LONG TERM CAPITAL GAIN AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT AND ADDED THE SAME TO THE TOTAL INCOME OF ASSESSEE. THE CIT(APPEA LS) CONFIRMED THE ORDER OF AO. 6. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THAT THE CONCLUSIONS OF REVENUE AUTHORIT IES ARE BASED ON INVESTIGATION REPORT CARRIED OUT BY THE DIRECTORATE OF INVESTIGATION, KOLKATA AND THE SAID REPORT HAS NOT BEEN CONFRONTED TO THE ASSESSEE. THE REVENUE AUTHORITIES HAVE ALSO PLACED RELIANCE ON STATEMENT OF PERSONS WHO ARE ALLEGED TO HAVE BEEN PART OF THE PRE-ARRANGED METHO D TO EVADE TAXES AND LAUNDER MONEY. THE LD. COUNSEL FOR THE ASSESSEE BR OUGHT TO OUR NOTICE THAT THE CLAIM OF ASSESSEE WAS SUPPORTED BY VALID DOCUME NTS AND THAT CANNOT BE IGNORED. IT WAS ALSO SUBMITTED THAT THERE WAS N O SPECIFIC REFERENCE TO NAME OF ASSESSEE IN ANY INVESTIGATION REPORT OR COM MUNICATION OF THE ASSESSEE WITH THE ALLEGED ENTRY OPERATORS. OUR SPE CIFIC ATTENTION WAS DRAWN TO GROUND NO.1 OF THE GROUNDS OF APPEAL FILED BEFORE THE CIT(APPEALS) WHEREIN THE ASSESSEE HAS SPECIFICALLY SUBMITTED THAT THE CONCLUSIONS DRAWN BY THE AO IN THE ORDER OF ASSESSM ENT ARE IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND NOT VALID BECAUSE OF NON-COMPLIANCE OF LEGAL REQUIREMENTS IN QUASI-JUDICIAL PROCEEDINGS. THUS, THE ASSESSEE HAS CHALLENGED THE NON-FURNISHING OF INVESTIGATION REPO RT AND STATEMENTS OF PERSONS ON THE BASIS OF WHICH CONCLUSIONS HAVE BEEN DRAWN BY THE AO. HE ALSO BROUGHT TO OUR NOTICE THAT THE CIT(A), DESP ITE SPECIFIC OBJECTION, HAS NOT CHOSEN TO ADDRESS THE SAME. OUR ATTENTION WAS ALSO DRAWN BY THE LD. COUNSEL FOR THE ASSESSEE TO GROUND NO.2.1 OF TH E GROUNDS OF APPEAL, WHICH READS AS FOLLOWS:- ITA NO.1866 TO 1869 & 1872/BANG/2019 PAGE 4 OF 11 2.1 IN ANY CASE THE ASSESSMENT ORDER PASSED IS IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY, ESPECIALLY IN THE ABSENCE OF REPORT/INFORMATION AND CROSS EXAMINATION OF PERSON WHOSE STATEMENTS WERE RELIED UPON BY THE ASSESSING OFFICER WHILE PASSING THE ORDER, MAKES TH E ORDER TOTALLY BAD IN LAW AND LIABLE TO BE CANCELLED. ACCORDING TO HIM, THEREFORE THE ENTIRE ADDITION MAD E IS LIABLE TO BE SET ASIDE. 7. THE LD. COUNSEL FOR THE ASSESSEE FILED BEFORE US A COPY OF THE ORDER DATED 05.12.2018 IN THE CASE OF SHRI RAMESH KUMAR SHAH VS. ACIT ITA NO.595/BANG/2018 WHEREIN THIS TRIBUNAL ON IDENTICAL FACTS OF VIOLATI ON OF PRINCIPLES OF NATURAL JUSTICE, REMANDED THE MATT ER FOR FRESH CONSIDERATION TO THE AO WITH THE FOLLOWING OBSERVATIONS:- 3.3 PER CONTRA, THE LEARNED DR FOR REVENUE SUBMITT ED THAT ON SIMILAR FACTS AND CIRCUMSTANCES AS IN THE CASE ON H AND, ISSUE FOR CONSIDERATION IS COVERED BY THE DECISIONS OF THE BE NGALURU ITAT IN THE CASES OF ARVIND KUMAR MOOCHAND IN ITA NO.509/BANG/2017 AND PUKHRAJ HASMUKHLAL IN ITA NO.1927/BANG/2017 WHEREIN THE TRIBUNAL HAS RESTORED THE ISSUE TO THE FILE OF THE AO HAVING OBSERVED THAT THE ADDI TIONS WERE MADE BASED ON REPORTS OF THE INVESTIGATION DIRECTOR ATE AT KOLKATA AND STATEMENTS OF VARIOUS PERSONS WITHOUT CONFRONTI NG OR MAKING THEM AVAILABLE TO THE ASSESSEE FOR REBUTTAL. IN THOSE CASES, THE TRIBUNAL RESTORED THE MATTER TO THE FILE OF THE AO WITH THE DIRECTION TO CONFRONT THE MATTER TO THE FILE OF THE AO WITH THE DIRECTION TO CONFRONT THE ASSESSEE WITH THE REPORTS / DOCUMENTS / STATEMENTS PROPOSED TO BE USED AGAINST THE ASSESSEE , ALLOW REBUTTAL THEREOF AND CROSS EXAMINATION OF PARTIES O N WHOSE TESTIMONY IS PROPOSED TO BE RELIED UPON AND THE MAT TER BE ADJUDICATED AFRESH AFTER AFFORDING THE ASSESSEE ADE QUATE OPPORTUNITY OF BEING HEARD AND TO ALSO FILE DETAILS / SUBMISSIONS IN THIS REGARD. 3.4 IN REJOINDER, THE LD.AR FOR THE ASSESSEE DID NOT DISPUTE THE PROPOSITION PUT FORTH BY THE LD. DR FOR RESTORING T HIS ISSUE TO THE FILE OF THE AO FOR DE NOVO ADJUDICATION. ITA NO.1866 TO 1869 & 1872/BANG/2019 PAGE 5 OF 11 3.5 WE HAVE HEARD BOTH PARTIES AND PERUSED AND CARE FULLY CONSIDERED THE MATERIAL ON RECORD; INCLUDING THE JU DICIAL DECISIONS CITED AND THE ORDERS OF THE AUTHORITIES BELOW. TAKI NG INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF THE CA SE THAT THE ASSESSEE SPECIFICALLY REQUESTED FOR CROSS-EXAMINATI ON OF THE DEPONENTS WHOSE STATEMENTS WERE THE BASIS OF ADDITI ON BY THE AO AND ALSO THE REPORT OF THE INVESTIGATION DIRECTORAT E, KOLKATA FOR REBUTTAL; FROM THE JUDICIAL DECISIONS CITED, WE FIN D THAT THE ISSUE FOR CONSIDERATION IS SQUARELY COVERED BY THE ORDERS OF THE BENGALURU ITAT IN THE CASES OF ARVIND KUMAR MOOLCHA ND (SUPRA) AND PUKHRAJ HASMUKHLAL (SUPRA). FOLLOWING T HE AFORESAID ORDERS (SUPRA), WE SET ASIDE THE ORDERS OF THE AO A ND RESTORE THE MATTER OF TREATMENT OF PROFIT DECLARED ON SALE OF S HARES, CLAIMED AS EXEMPT U/S 10(38) OF THE ACT, TO THE FILE OF THE AO TO RE- ADJUDICATE THE ISSUE AFRESH; AFTER MAKING AVAILABLE TO THE ASSESSEE FOR REBUTTAL ALL DOCUMENTS; INCLUDING STATEMENTS, I NVESTIGATION REPORTS, ETC., RELIED UPON BY REVENUE FOR MAKING TH E ADDITIONS/DISALLOWANCES AND PROVIDING ADEQUATE OPPO RTUNITY TO THE ASSESSEE FOR CROSSEXAMINATION OF PERSONS WHOSE STATEMENTS ARE BEING RELIED UPON. IT IS ACCORDINGLY ORDERED. C ONSEQUENTLY, GROUND NO. 2 IS DISPOSED OFF AS ABOVE. ' 8. A COPY OF THE JUDGMENT OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF MRS. CHANDRA DEVI KOTHARI VS. ITO W.P.39370/2014 (T -IT) WAS ALSO FILED BEFORE US WHEREIN ON IDENTICAL ISSUE OF ACCOMMODATION/BOGUS ENTRIES BASED ON STATEMENT OF T HIRD PARTIES, THE HONBLE KARNATAKA HIGH COURT TOOK THE VIEW THAT THE MATTER REQUIRES TO BE RE-CONSIDERED BY PROVIDING FAIR AND REASONABLE OPPO RTUNITY OF HEARING TO THE ASSESSEE AFTER PROVIDING COPIES OF STATEMENT RELIED UPON BY THE REVENUE. 9. THE LD. DR SUBMITTED THAT THE AO HAS GIVEN VALID REASONS BASED ON WHICH HE HAS COME TO THE CONCLUSION THAT LTCG DECLA RED BY THE ASSESSEE IS BOGUS. ACCORDING TO HIM, IT CANNOT BE SAID THAT THE CONCLUSIONS DRAWN BY THE AO WHICH WAS CONFIRMED BY THE CIT(A) ARE WITHOU T ANY BASIS AND THEREFORE THERE IS NO REQUIREMENT TO REMAND THE ISS UE TO THE AO FOR FRESH CONSIDERATION. ITA NO.1866 TO 1869 & 1872/BANG/2019 PAGE 6 OF 11 10. THE LD. DR ALSO PLACED RELIANCE ON THE HONBLE DELHI HIGH COURT DECISION IN THE CASE OF SUMANT PODDAR V. ITO IN ITA NO.841/2019 DATED 17.09.2019 WHEREIN THE HONBLE DELHI HIGH COURT NOTICED THAT THE ITAT DELHI HAD GIVEN THE FOLLOWING OBSERVATIONS WITH REG ARD TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE IN SUCH CASES:- 11. .. REGARDING FAILURE TO ACCORD OPPORTUNITY OF CROSS EXAMINATION, WE RELY ON JUDGMENT OF PREM C ASTINGS PVT. LTD. SIMILARLY, TRIBUNAL IN CASE OF UDIT KALRA , ITA NO. 6717/DEL/2017 FOR ASSESSMENT YEAR 2014-15 HAS CATEG ORICALLY HELD THAT WHEN THERE WAS SPECIFIC CONFIRMATION WITH REVENUE THAT ASSESSEE HAS INDULGED NON-GENUINE AND BOGUS CA PITAL GAINS OBTAINED FROM TRANSACTIONS OF PURCHASE AND SA LE OF SHARES, IT CAN BE GOOD REASON TO TREAT TRANSACTIONS AS BOGUS. DIFFERENCES OF CASE OF UDIT KALRA ATTEMPTED BY LD. AR DOES NOT ADD ANY CREDENCE TO JUSTIFY TRANSACTIONS. INVESTIGA TION WING HAS ALSO CONDUCTED ENQUIRIES WHICH PROVED THAT ASSESSEE IS ALSO ONE OF BENEFICIARIES OF TRANSACTIONS ENTERED BY COMPANI ES THROUGH MULTIPLE LAYERING OF TRANSACTIONS AND ENTRIES PROVI DED. EVEN BSE LISTED THIS COMPANY AS BEING USED FOR GENERATING BO GUS LTCG. ON FACTS OF CASE AND JUDICIAL PRONOUNCEMENTS WILL G IVE RISE TO ONLY CONCLUSION THAT ENTIRE ACTIVITIES OF ASSESSEE IS COLOURABLE DEVICE TO OBTAIN BOGUS CAPITAL GAINS. HON'BLE HIGH COURT OF DELHI IN CASE OF UDIT KALRA, ITA NO. 220/2009 HELD THAT C OMPANY HAD MEAGER RESOURCES AND ASTRONOMICAL GROWTH OF VALUE O F COMPANY'S SHARES ONLY EXCITED SUSPICION OF REVENUE AND HENCE, TREATED RECEIPTS OF SALE OF SHARES TO BE BOGUS. HON'BLE HIG H COURT HAS ALSO DEALT WITH ARGUMENTS OF ASSESSEE THAT HE WAS D ENIED RIGHT OF CROSS EXAMINATION OF INDIVIDUALS WHOSE STATEMENTS L ED TO ENQUIRY. LD. AR ARGUMENT THAT NO QUESTION OF LAW HAS BEEN FR AMED IN CASE OF UDIT KALRA ALSO DOES NOT MAKE ANY TANGIBLE DIFFE RENCE TO DECISION OF THIS CASE. SINCE ADDITIONS HAVE BEEN CO NFIRMED BASED ON ENQUIRIES BY REVENUE, TAKING INTO CONSIDERATION RATIO LAID DOWN BY VARIOUS HIGH COURTS AND HON'BLE SUPREME COU RT, OUR DECISION IS EQUALLY APPLICABLE TO RECEIPTS OBTAINED FROM ALL THREE ENTITIES. FURTHER, RELIANCE IS ALSO PLACED ON ORDER S OF VARIOUS COURTS AND TRIBUNALS LISTED BELOW. MK. RAJESHWARI V S. ITO IN ITA NO.1723/BANG/2018, ORDER DATED 12.10.2018. ABHI MANYU SOIN VS. ACIT IN ITA NO. 9511CHDL2016, ORDER DATED ITA NO.1866 TO 1869 & 1872/BANG/2019 PAGE 7 OF 11 18.04.2018. SANJAY BIMALCHAND JAIN VS. ITO 89 TAXMA NN.COM 196. DINESH KUMAR KHANDELWAL, HUF VS. ITO IN ITA NO . 58 & 591/NAG/2015, ORDER DATED 24.08.2016. RATNAKAR M PU JARI VS. ITO IN IT NO. 9951MUML2012, ORDER DATED 03.08.2016. DISHA N. LALWANI VS. ITO IN ITA NO. 6398/MUM/2012, ORDER DAT ED 22.03.2017, ITO VS. SHAMIM. M BHARWONI [2016] 69 TAXMANN.COM 65. USHA CHANDRESH SHAH VS ITO IN ITA N O. 6858/MUM/2011, ORDER DATED 26.09.2014. CIT VS. SMT. JASVINDER KAUR 357 ITR 638. 12. FACTS AS WELL AS RATIONALE GIVEN BY HON 'BLE HI GH COURT ARE SQUARELY APPLICABLE TO CASE BEFORE US. HENCE, KEEPI NG IN VIEW OVERALL FACTS AND CIRCUMSTANCES OF CASE THAT PROFIT S EARNED BY ASSESSEE ARE PART OF MAJOR SCHEME OF ACCOMMODATION ENTRIES AND KEEPING IN VIEW RATIO OF JUDGMENTS QUOTED ABOVE, WE , HEREBY DECLINE TO INTERFERE IN ORDER OF LD. CIT(A). (EMPHASIS SUPPLIED) 11. THE HONBLE DELHI HIGH COURT AGREED WITH THE AF ORESAID REASONING OF THE TRIBUNAL. OUR ATTENTION WAS ALSO DRAWN TO CERTA IN OBSERVATIONS OF THE HONBLE DELHI HIGH COURT IN THE CASE OF UDIT KALRA IN ITA NO.22/2019 DATED 08.03.2019 WHEREIN IT WAS OBSERVED BY THE HONBLE DELHI HIGH C OURT, IN ANSWER TO VIOLATION OF PRINCIPLES OF NATURAL JUSTIC E IN AS MUCH AS THE STATEMENT OF PERSONS ON WHOSE BASIS THE REVENUE AUT HORITIES CONCLUDED THAT TRANSACTION OF SALE OF SHARES WERE PRE-ARRANGE D TRANSACTIONS WERE NOT CONFRONTED TO THE ASSESSEE, THAT THE FINDINGS OF THE REVENUE AUTHORITIES AS WELL AS THE TRIBUNAL WERE CONCURRED FINDINGS OF FAC TS WHICH DOES NOT CALL FOR INTERFERENCE. 12. FURTHER RELIANCE WAS ALSO PLACED BY THE LD. DR ON THE DECISION OF THE ITAT BANGALORE BENCH RENDERED IN THE CASE OF SHRI RAMESHCHAND KOTHARI V. ACIT IN ITA NO.699/BANG/2019 FOR AY 2014-15 , ORDER DATED 28.08.2019 , WHEREIN THE TRIBUNAL OBSERVED AS FOLLOWS:- ITA NO.1866 TO 1869 & 1872/BANG/2019 PAGE 8 OF 11 5. WE ARE CONSCIOUS OF THE PRINCIPLE THAT, WITHO UT OPPORTUNITY OF CROSS- EXAMINATION, SUCH STATEMENTS CANNOT BE RE LIED UPON AGAINST ANY PERSON. HOWEVER, SUCH RIGHT, AS HELD IN VARIOUS DECISIONS BY HONBLE SUPREME COURT, IS NOT AN ABSOL UTE RIGHT AND DEPENDS ON THE CIRCUMSTANCES OF THE CASE AND THE ST ATUTE CONCERNED AS HELD IN STATE OF J&K VS. BAKSHI GULAM MOHD. AIR 1967 (SC) 122, AND NATH INTERNATIONAL SALES VS. UOI REPORTED IN AIR 1992 DEL 295. IN CASE OF T. DEVASAHAYA NADAR V. CIT REPORTED IN (1964) 51 ITR 20 (MAD) IT HAS BEEN HELD THAT; 'IT IS NOT AN UNIVERSAL RULE THAT ANY EVIDENCE UPON WHICH THE DEPARTMENT MAY RELY SHOULD HAVE BEEN SUBJECTED TO CROSSEXAMINATION, IF THE ASSESSING OFFICER REFUSES TO PRODUCE AN INFORMANT FOR CROSS-EXAMINATION BY THE ASSESSEE THE RE CANNOT BE ANY VIOLATION OF NATURAL JUSTICE. 6. FURTHER IN CASE OF GTC INDUSTRIES LTD. V. ASSTT. CIT REPORTED IN (1998) 60 TTJ (BOM-TRIB) 308 , IT HAS BEEN HELD THAT, WHERE STATEMENT AND REPORT OF THIRD PARTIES ARE ONLY SECO NDARY AND SUBORDINATE MATERIAL WHICH WERE USED TO BUTTRESS TH E MAIN MATTER CONNECTED WITH THE QUANTUM OF ADDITION, DENIAL OF O PPORTUNITY TO CROSS EXAMINE THIRD PARTIES DID NOT AMOUNT TO VIOLA TION OF NATURAL JUSTICE. EACH CASE HAS GOT TO BE DECIDED ON FACTS A ND CIRCUMSTANCES OF THAT CASE. THUS IN OUR CONSIDERED OPINION, RELEVANT FACTORS TO BE CONSIDERED ARE SURROUNDING C IRCUMSTANCES, OBJECTIVE FACTS, EVIDENCE ADDUCED, PRESUMPTION OF F ACTS BASED ON COMMON HUMAN EXPERIENCE IN LIFE AND REASONABLE CONC LUSIONS. 7. IT IS FURTHER OBSERVED THAT LD. AO HAS NOT EXAMI NED/CALLED FOR ANY EVIDENCES IN RESPECT OF PURCHASE/SALE OF ALLEGE D SCRIPTS. ASSESSEE IS THEREFORE DIRECTED TO PROVIDE ALL RELEV ANT DOCUMENTS TO ESTABLISH SOUND FINANCIAL OF ALLEGED COMPANIES A ND THAT FLUCTUATION IN PRICE WAS MARKET DRIVEN. LD.AO SHALL TAKE ALL EVIDENCES INTO CONSIDERATION AND THEN DECIDE THE IS SUE AS PER LAW. IN THE EVENT DE HORS STATEMENT, THERE ARE OVERWHELM ING EVIDENCES AND ASSESSEE IS UNABLE TO ESTABLISH GENUINENESS OF SALE AND PURCHASE OF ALLEGED SCRIPTS, ADVERSE VIEW WOULD BE TAKEN BY HOLDING THE TRANSACTION TO BE SHAM. ITA NO.1866 TO 1869 & 1872/BANG/2019 PAGE 9 OF 11 8. LD.AO IS DIRECTED TO PROVIDE ALL STATEMENTS RECO RDED BY INVESTIGATION WING TO ASSESSEE, REFERRED TO IN ASSE SSMENT ORDER. IN THE EVENT, STATEMENTS RECORDED ARE NOT OF SECONDARY AND SUBORDINATE CATEGORY, CROSS EXAMINATION HAS TO BE G RANTED TO ASSESSEE. LD.AO IS DIRECTED TO RE-EXAMINE THE CASE OF ASSESSEE IN THE LIGHT OF AFORESTATED DIRECTION IN ACCORDANCE WI TH LAW. NEEDLESS TO SAY THAT PROPER OPPORTUNITY SHALL BE GR ANTED TO ASSESSEE TO REPRESENT ITS CASE AS PER. 13. ACCORDING TO THE LD. DR, THEREFORE, THE PLEA OF ASSESSEE FOR REMAND SHOULD BE REJECTED AND THE ADDITION MADE BY THE REV ENUE AUTHORITIES SHOULD BE CONFIRMED. 14. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT IDENTICAL ISSUE WAS CONSIDERED BY THIS TRIBUNAL IN THE CASE O F SHRI RAMESH KUMAR SHAH (SUPRA) AND THE TRIBUNAL REMANDED THE ISSUE TO THE AO FOR F RESH CONSIDERATION WITH A DIRECTION THAT THE ASSESSEE SH OULD BE PROVIDED WITH ALL THE RELEVANT EVIDENCE RELIED UPON BY THE AO FOR MAK ING THE ADDITION AND ALSO ALLOW OPPORTUNITY OF CROSS-EXAMINATION OF STAT EMENTS OF PERSONS WHICH HAS BEEN RELIED UPON BY THE INVESTIGATION AGENCY. WE ALSO FIND THAT THE HONBLE HIGH COURT OF KARNATAKA HAS GIVEN SIMILAR D IRECTIONS IN THE CASE OF MRS. CHANDRA DEVI KOTHARI (SUPRA) WHEREIN ALSO THE ISSUE WAS WITH REGARD TO LONG TERM CAPITAL GAIN ON SALE OF SHARES BEING TREATED AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT BY THE R EVENUE. IN THE LIGHT OF THE AFORESAID DIRECTIONS, WE SET ASIDE THE ORDER OF THE CIT(APPEALS) AND REMAND THE QUESTION OF TREATING THE LONG TERM CAPIT AL GAIN AS UNEXPLAINED CASH CREDIT TO THE AO FOR FRESH CONSIDERATION AS DI RECTED BY THE TRIBUNAL IN THE CASE OF SHRI RAMESH KUMAR SHAH (SUPRA) . WE MAKE IT CLEAR THAT ALL ISSUES RAISED BY THE ASSESSEE IN THIS APPEAL ARE AL SO LEFT OPEN FOR CONSIDERATION. 15. WE HAVE CONSIDERED THE DECISION CITED BY THE LD . DR AND WE FIND THAT THAT THE DECISION RENDERED IN THE CASE OF SUMANT PODDAR (SUPRA) BY THE ITA NO.1866 TO 1869 & 1872/BANG/2019 PAGE 10 OF 11 HONBLE DELHI HIGH COURT IS ON THE FACTS WHERE THE ASSESSEE DID NOT PRODUCE EVIDENCE OF CONTRACT NOTES ISSUED BY THE SH ARE BROKER. THIS FACT IS NOTICED IN PARA 8 OF THE HONBLE DELHI HIGH COURTS ORDER. IN THE PRESENT CASE THERE IS NO SUCH DEFICIENCY OF NON PRODUCTION OF REQUIRED DOCUMENTS. 16. AS FAR AS THE DECISION OF THE HONBLE DELHI HIG H COURT IN THE CASE OF UDIT KALRA (SUPRA) IS CONCERNED, THE DECISION WAS RENDERED PURELY ON THE BASIS THAT THE FINDINGS OF THE LOWER AUTHORITIES WE RE ENTIRELY ON CONCURRENT FINDING OF FACTS AND THEREFORE THE HONBLE HIGH COU RT REFUSED TO ADMIT THE APPEAL ON THE GROUND THAT NO SUBSTANTIAL QUESTION O F LAW AROSE. 17. AS FAR AS THE DECISION OF BANGALORE TRIBUNAL IN THE CASE OF SHRI RAMESHCHAND KOTHARI (SUPRA) IS CONCERNED, THE ISSUE WAS REMANDED TO THE AO FOR FRESH CONSIDERATION TO PROVIDE COPIES OF STATEMENTS TO THE ASSESSEE WITH CERTAIN DIRECTIONS TO THE AO. 18. SINCE THE MATTER IS BEING REMANDED, WE DO NOT W ANT TO MAKE ANY OBSERVATIONS WHICH WILL CAUSE PREJUDICE TO THE PART IES IN THE SET ASIDE PROCEEDINGS AND ARE OF THE VIEW THAT THE ISSUE SHOU LD BE LEFT OPEN FOR CONSIDERATION BY THE AO, WITH LIBERTY TO THE ASSESS EE TO MAKE HIS SUBMISSIONS ON RELIANCE ON STATEMENTS MADE BY THE P ERSONS WHO HAVE NO CONNECTION WHATSOEVER WITH THE TRANSACTION OF SALE OF SHARES BY THE ASSESSEE GIVING RISE TO LONG TERM CAPITAL GAIN. 19. FOR THE REASONS GIVEN ABOVE, WE ARE OF THE VIEW THAT THE ISSUE SHOULD BE REMANDED FOR FRESH CONSIDERATION BY THE A O ON THE LINES INDICATED IN THE EARLIER PARAGRAPHS OF THIS ORDER. WE DIRECT ACCORDINGLY. WITH THESE OBSERVATIONS, WE ALLOW ALL THESE APPEALS OF ASSESSES FOR STATISTICAL PURPOSES. ITA NO.1866 TO 1869 & 1872/BANG/2019 PAGE 11 OF 11 20. IN THE RESULT, ALL THE APPEALS ARE TREATED AS A LLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 3 RD DAY OF JANUARY, 2020. SD/- SD/- ( A K GARODIA ) ( N V VASUDEVAN ) ACCOUNTANT MEMBER VICE PRESIDENT BANGALORE, DATED, THE 3 RD JANUARY, 2020. / DESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(E) 5. DR, ITAT, BANGALORE. 6. GUARD FIL E BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.