Manish Chhaparia, Mumbai V. ITO Burhanpur, Burhanpur

ITA 200/Ind/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4943 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-08-2021
• Assessment Year: 2011-2012
• Appeal Filed On: 26-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Principle of natural justice; Opportunity of cross examination; Tangible material; Wrong claim; Third party statement; Accommodation entries; Scheme of amalgamation; Retraction; Reassessment proceedings; Set aside; Capital Gains
• Section: 143(3); 133A; 153A; 14A; 133(6); 143(2); 158BC; 13; 153; 22; 153C; 68; 148; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE (CONDUCTED THROUGH VIRTUAL COURT) BEFORE SHRI MANISH BORAD, ACCOUNTANT MEMBER& MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NOS.199/IND/2019 (ASSESSMENT YEARS: 2011-12) ASHISH CHHAPARIA 1703B, ASTER TOWER, NEAR VIBHGYOR SCHOOL, OPPOSITE OBEROI MALL, MALAD EAST, MUMBAI-400097 VS. ITO AAYKAR BHAWA, STATION ROAD, BURHANPUR-450331 PAN NO.ABMPC4542L ( APPELLANT ) .. ( RESPONDENT ) I.T.A. NOS.200&201/IND/2019 (ASSESSMENT YEARS: 2011-12 & 2012-13) MANISH CHHAPARIA 1703B, ASTER TOWER, NEAR VIBHGYOR SCHOOL, OPPOSITE OBEROI MALL, MALAD EAST, MUMBAI-400097 VS. ITO AAYKAR BHAWAN, STATION ROAD, BURHANPUR-450331 PAN NO.ABMPC4541K ( APPELLANT ) .. ( RESPONDENT ) I.T.A. NOS. 202/IND/2019 (ASSESSMENT YEARS: 2011-12) PAWAN KUMAR CHHAPARIA 1703B, ASTER TOWER, NEAR VIBHGYOR SCHOOL, OPPOSITE OBEROI MALL, MALAD EAST, MUMBAI-400097 VS. ITO AAYKAR BHAWAN, STATION ROAD, BURHANPUR-450331 PAN NO.ABMPC4540J ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI PANKAJ SHAH, CA RESPONDENT BY : SHRI HARSHIT BARI, SR. DR ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 2 DATE OF HEARING 18.08.2021 DATE OF PRONOUNCEMENT 22.09.2021 O R D E R PER MS. MADHUMITA ROY - JM: THE BUNCH OF APPEALS FILED BY THE DIFFERENT ASSESSE E(S) ARE DIRECTED AGAINST THE COMMON ORDER DATED 24.12.2018 PASSED BY THE LD. CIT(A)-II, INDORE, ARISING OUT OF THE SEPARATE ORDERS DATED 22 .12.2016 & 23.12.2016 PASSED BY THE ITO, BURHANPUR UNDER SECTION 147/143( 3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FO R A.YS. 2011-12 & 2012- 13 RESPECTIVELY. 2. ITA NO. 199/IND/2019 A.Y. 2011-12 IS TAKEN AS TH E LEAD CASE. THE DISALLOWANCE OF CLAIM OF LONG TERM CAPITAL GAIN ON SALE OF LISTED SHARES AMOUNTING TO RS. 77,57,559/- IS THE ISSUE BEFORE US . THE SAID CLAIM OF THE ASSESSEE HAS BEEN REJECTED BY BOTH THE PARTIES BELO W AND HENCE THE APPEAL BEFORE US. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS MADE BY THE RESPECTIVE PARTIES AND WE HAVE ALSO PERUSED THE RELEVANT MATERIALS AVA ILABLE ON RECORD. 4. THE BRIEF FACTS LEADING TO THE CASE IS THIS THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 30.03.2012 SHOWING INCOME AT RS. 1,87,830/- AND AGRICULTURAL INCOME OF RS. 3,85,270/-. THE ASSESSEE CLAIMED LONG TERM CAPITAL GAINS OF RS. 77, 57,559/-. UPON VERIFICATION OF ITD APPLICATION BY THE DEPARTMENT I T WAS FOUND THAT AN INVESTIGATION WAS CARRIED OUT BY DIT(INV.), KOLKATA ON BOGUS CLAIM OF LONG TERM CAPITAL GAIN MADE BY THE VARIOUS ASSESSEES THR OUGH PRICE RIGGING IN ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 3 PENNY STOCK COMPANY. IN THAT CONNECTION THE CASE O F THE ASSESSEE WAS REOPENED UNDER SECTION 147OF THE ACT. NOTICE DATED 31.03.2016 UNDER SECTION 148 WAS ISSUED AND THE PROCEEDING WAS CARRI ED BY THE LD. AO. UPON VERIFICATION OF COMPUTATION OF INCOME IT WAS F OUND THAT THE ASSESSEE HAD SHOWN EXEMPT LONG TERM CAPITAL GAIN ON PURCHASE /SALE OF SHARES AT RS. 74,88,105/-. THE ASSESSEE IN TOTAL PURCHASED 2,00, 000 QUANTITY OF SCRIP OF M/S. SPLASH MEDIA WORKS LTD. FROM ONE M/S. A. S. SE CURITIES SHARES AND INVESTMENT CONSULTANTS, 63/2, VADAR SOCIETY, MALAD (E), MUMBAI. THE PURCHASE BILL WAS SUBMITTED BY THE ASSESSEE. THE A SSESSEE HAS CLAIMED TO HAVE PURCHASED THESE 5000 SHARES OF SPLASH MEDIA WO RKS LTD. THROUGH BROKER M/S. A. S. SECURITIES SHARES AND INVESTMENT, MUMBAI. THESE SHARES HAVE BEEN PURCHASED @ RS. 41=40 PER SHARES. SUBSEQ UENTLY, THESE SHARES WAS SOLD THROUGH BROKER M/S. COMFORT SECURITIES LTD ., S. V. ROAD, MALAD, MUMBAI. THE ASSESSEE ALSO SUBMITTED THAT SUBSEQUEN T TO PURCHASE OF THESE SHARES THE COMPANY HAS ISSUED 15000 BONUS SHARES ON 31.12.2009 AGAINST HOLDING OF ONE SHARE IN THE RATIO OF 3:1. TOTAL NU MBER OF SHARES HELD BY THE ASSESSEE IN THE COMPANY INCREASED TO 20000 SHARES. SUBSEQUENTLY THE SHARES WERE SPLITTED BY THE COMPANY INTO TEN SHARES AGAINST HOLDING OF ONE SHARE. THUS, THE SHARE HOLDING IN THE SAID COMPANY INCREASED TO 200000 SHARES. THESE SHARES SOLD ULTIMATELY BY THE ASSESS EE THROUGH BROKER M/S. COMFORT SECURITIES LTD. (BSE CASH) (A BSE BROKER) D URING THE PERIOD 25.02.2011 AND 16.03.2011. THROUGH THESE TRANSACTI ONS ASSESSEE HAS CLAIMED TO HAVE EARNED LONG TERMS CAPITAL GAIN AT R S. 77,57,559/- WHICH THE ASSESSEE HAS CLAIMED EXEMPT U/S. 10(38) OF THE I.T. ACT. SINCE THE A. S. SECURITIES SHARES AND INVESTMENT CONSULTANTS, MUMBA I HAS NOT ENTERED INTO ANY TRANSACTION OF ANY STOCK EXCHANGE THE BILLS REL ATING TO SUCH TRANSACTION ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 4 SUBMITTED BY THE ASSESSEE HAVE BEEN TREATED TO BE F ALSE BY THE LD. AO. RELEVANT TO MENTION THAT THE ASSESSEE PURCHASED SHA RES OF SPLASH MEDIA FROM M/S. A. S. SECURITIES, MUMBAI VIDE BILL DATED 25.09.2009 FOR RS. 2,07,000/- AND THE PAYMENT HAS BEEN CLEARED FROM TH E ASSESSEE THROUGH UNION BANK OF INDIA ACCOUNT NO. 4912 ON 27.01.2010. 5. THE LD. AO IS OF THE VIEW THAT THE PAYMENT HAS B EEN CLEARED ONLY ON 27.01.2010, AND THE CHEQUE HAS BEEN ISSUED TO M/S. A. S. SECURITIES, MUMBAI ON 22.08.2009 FOR RS. 2,07,000/- OF UNION BA NK OF INDIA, A/C NO. 4912 BEARING CHEQUE NO. 084015. FINALLY RELYING UP ON THE STATEMENT MADE BY ONE SHRI ANIL AGRAWAL AND THE REPORT OF THE DIT( INVESTIGATION), KOLKATA ADMITTEDLY A COPY WHEREOF HAS NOT BEEN GIVEN TO THE ASSESSEE THE EXEMPT LTCG OF RS. 77,57,559/- HAS BEEN TREATED TO BE BOGU S CLAIM MADE FOR INTRODUCING THE ASSESSEES OWN UNACCOUNTED MONEY IN TO BOOKS OF ACCOUNTS WHICH WAS, IN TURN, CONFIRMED BY THE LD. CIT(A). 6. AT THE TIME OF HEARING OF THE INSTANT APPEAL THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE SAME ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE ITAT MUMBAI BENCH IN THE CASE OF M/S. ANIL AGRAWAL (HUF) VS. DCIT IN ITA NO. 5512-5516/MUM/201 9 FOR A.Y. 2010- 11 TO 2014-15. THE RELEVANT PORTION WHEREOF IS AS FOLLOWS:- 6. OUR FINDINGS AND ADJUDICATION 6.1 SO FAR AS THE MATERIAL FACTS ARE CONCERNED, WE FIND THAT THE ASSESSEE HAS SOLD 22502 SHARES OF A SCRIP NAMELY SMIL DURING THE YEAR . THE SHARES WERE PURCHASED ON 27/03/2009 AT COST OF RS.18.79 LACS AND SOLD DURING THE PERIOD 19/08/2009 TO 23/09/2009 FOR AGGREGATE CONSIDERATION OF RS.44.39 LACS, THEREBY YIELDING SHORT- TERM CAPITAL GAIN OF RS.25.59 LACS IN THE HANDS OF THE ASSESSEE. THE AFORESAID GAIN HAS DULY BEEN REFLECTED BY THE ASSESSEE IN ITS ORIG INAL RETURN OF INCOME. DURING THE YEAR, THE ASSESSEE HAS DISCLOSED SHORT-TERM GAIN OF RS.43.02 LACS ON VARIOUS SCRIPS INCLUDING GAIN ON THIS SCRIP. SIMILARLY, NET LONG-T ERM CAPITAL GAINS HAVE BEEN REFLECTED ON OTHER SCRIPS ALSO. THE BALANCE SHEET O F THE ASSESSEE REVEALS THAT IT HAS ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 5 YEAR-END INVESTMENT IN SHARES FOR RS.93.44 LACS AND ANOTHER INVESTMENT OF RS.103.50 LACS IN SHARE WARRANTS. THE PERUSAL OF THE BALANCE SHEET WOULD SHOW THAT A SUBSTANTIAL PORTION OF ASSESSEES CAPITAL HAS BEEN PLOUGHED BACK BY WAY OF INVESTMENTS. ON THE BASIS OF ALL THESE FACTS, IT CO ULD VERY WELL BE CONCLUDED THAT THE IMPUGNED TRANSACTIONS ARE NOT ISOLATED TRANSACTIONS CARRIED OUT BY THE ASSESSEE RATHER THE ASSESSEE IS A HABITUAL INVESTOR AND EARN MAJOR PART OF ITS INCOME FROM INVESTMENT ACTIVITIES. 6.2 UNDISPUTEDLY, THE PURCHASE TRANSACTIONS AS WELL AS SALE TRANSACTIONS HAVE TAKEN PLACE THROUGH ONLINE PLATFORM OF STOCK EXCHAN GES THROUGH REGISTERED STOCK BROKER. THESE TRANSACTIONS HAVE BEEN SUBJECTED TO S ECURITIES TRANSACTION TAX (STT). THE TRANSACTIONS ARE DULY EVIDENCED BY CONTRACT NOT ES ISSUED BY ASSESSEES SHARE- BROKER M/S CSL, DEMAT STATEMENT EVIDENCING MOVEMENT OF SHARES, BANK STATEMENTS EVIDENCING MOVEMENT OF FUNDS THROUGH BANKING CHANNE LS. THE SALE TRANSACTIONS ARE EVIDENCED BY SALE CONTRACT NOTES. THE SALE CONSIDER ATION HAS DULY BEEN RECEIVED THROUGH BANKING CHANNELS AND THE SHARES HAVE MOVED OUT OF ASSESSEES DEMAT ACCOUNT. ALL THESE DOCUMENTS HAVE DULY BEEN FURNISH ED BY THE ASSESSEE BEFORE LD. AO. THE SAME HAS ALSO BEEN PLACED BEFORE US IN THE PAPER-BOOK (PAGE NOS. 63 TO 93 OF ASSESSEES PAPER-BOOK). NO DEFECT OR DISCREPANCY HAS BEEN POINTED OUT BY ANY OF THE LOWER AUTHORITIES IN ASSESSEES DOCUMENTATION. ALL THESE EVIDENCES AS WELL AS DOCUMENTARY EVIDENCES REMAIN UNCONTROVERTED BEFORE US ALSO AND NO DEFECT HAS BEEN POINTED OUT IN THE SAME. THE LD. AO HAS ALSO ACCEPT ED THIS FACT IN THE ASSESSMENT ORDER. UPON PERUSAL OF ALL THESE DOCUMENTS, IT IS Q UITE DISCERNIBLE THAT THE ASSESSEE HAD FURNISHED ALL THE REQUISITE DOCUMENTARY EVIDENC ES TO SUBSTANTIATE THE TRANSACTIONS AND DISCHARGED THE PRIMARY ONUS AS REQ UIRED UNDER LAW TO ESTABLISH THE GENUINENESS OF THE GAINS SO EARNED DURING THE YEAR. THEREFORE, THE ONUS HAD, THUS, SHIFTED ON REVENUE TO DISPROVE ASSESSEES CLAIM AND ESTABLISH WITH COGENT EVIDENCES THAT THE TRANSACTIONS WERE NON-GENUINE TRANSACTIONS THROUGH WHICH ASSESSEES UNACCOUNTED MONEY HAS FLOWN BACK TO ASSESSEE IN THE GARB OF BOGUS CAPITAL GAINS. HOWEVER, WE FIND THAT EXCEPT FOR THIRD-PARTY STATEM ENTS, THERE IS NOTHING IN THE KITTY OF THE REVENUE TO DISLODGE ASSESSEES CLAIM. NO EXC HANGE OF CASH BETWEEN THE ASSESSEE AND THE VARIOUS EXIT PROVIDERS COULD BE PR OVED. IN THE ABSENCE OF SUCH A FACT, ADDITIONS COULD NOT BE SUSTAINED AS HELD BY H ONBLE BOMBAY HIGH COURT IN CIT V/S LAVANYA LAND PRIVATE LIMITED (83 TAXMANN.COM 16 1). FURTHER, NO LINK BETWEEN THE ASSESSEE AND ALLEGED EXIT-PROVIDERS COU LD BE ESTABLISHED BY LD. AO. IN FACT, DURING APPELLATE PROCEEDINGS, THE DETAILS OF PERSONS WHO BOUGHT ASSESSEES SHARES WAS OBTAINED FORM STOCK EXCHANGE. ALL THESE PERSONS WERE INDIVIDUALS AND NOT CORPORATE ENTITIES AS ALLEGED BY LD.AO AND IDENTIFI ED BY INVESTIGATION WING AS ENTITIES BELONGING TO VARIOUS ENTRY PROVIDERS. THER EFORE, THE ALLEGATION THAT THE SHARES WERE PURCHASED BY PAPER ENTITIES COULD ALSO NOT BE SUSTAINED. 6.3 SO FAR AS THE OBSERVATIONS OF LD. AO AS TO FINA NCIAL AND PROFITABILITY OF SMIL IS CONCERNED, WE FIND THAT THE SALES TRANSACTIONS H AVE TAKEN PLACE IN ONLINE MECHANISM THROUGH RECOGNIZED STOCK EXCHANGE WHEREIN THE IDENTITY OF THE BUYER WOULD NOT BE KNOWN AND THERE WOULD BE NO PRIVITY OF CONTRACT BETWEEN THE ASSESSEE AND PROSPECTIVE BUYERS OF SHARES. IN ONLINE MODE OF TRADE, THE PRICES WOULD BE GUIDED BY THE BUYER WILLING TO BUY THE SHARES AT CE RTAIN PRICES AND THE SELLER WILLING TO SELL THE SHARES AT CERTAIN PRICES. THE PRICES WO ULD BE GUIDED MORE BY THE MARKET ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 6 FORCES RATHER THAN THE FINANCIALS OR OTHER PARAMETE RS. THERE WOULD BE BUYERS AND SELLERS LINING UP ON EITHER SIDE OF A POTENTIAL TRA DE; ONE PARTY WILLING TO PART WITH OWNERSHIP AND OTHER PARTY WILLING TO ACQUIRE THE OW NERSHIP. WHEN BOTH THE PARTIES WOULD AGREE UPON A PRICE, THE TRADE IS MATCHED AND THAT PRICE WOULD BECOME NEW MARKET QUOTATION. THEREFORE, THE FINANCIALS OF UNDE RLYING ENTITIES, IN SUCH CASES, WOULD LOSE MUCH RELEVANCE IN SO FAR AS THE PRICE MO VEMENT OF SCRIP IS CONCERNED. NOTHING ADVERSE COULD BE DRAWN AGAINST THE ASSESSEE ON THE BASIS OF THE SAME. IN FACT, SHRI ANIL AGARWAL HAS BECOME DIRECTOR OF THIS ENTITY ON 24/06/2015 AND THIS ENTITY IS SAID TO BE ENGAGED IN REAL ESTATE DEVELOP MENT HAVING PROJECTS AT MUMBAI. HENCE, THIS ENTITY COULD NOT BE SAID TO BE MERELY A DUMMY ENTITY. FURTHER, THE IMPUGNED TRANSACTIONS HAVE TAKEN PLACE MUCH BEFORE THE PERIOD WHEN SHRI ANIL AGARWAL HAS BECOME DIRECTOR OF SMIL. HENCE, THE AFO RESAID OBSERVATIONS AS WELL AS CONCLUSION OF LD. AO WOULD NOT BE MUCH GERMANE AS T O THE ADJUDICATION OF THE ISSUE. 6.4 PROCEEDING FURTHER, IT COULD BE OBSERVED THAT T HE PRIMARY REASON TO DOUBT THE GENUINENESS OF ASSESSEES TRANSACTIONS IS SEARCH AC TION FINDINGS OF THE INVESTIGATION WING, DELHI IN THE CASE OF SHRI R.K.KEDIA & GROUP. A COPY OF STATEMENT GIVEN BY SHRI R.K.KEDIA IS AVAILABLE IN THE DEPARTMENTS PAPER-BO OK. IN THE STATEMENT ON OATH MADE BY SHRI R.K.KEDIA BETWEEN 13/06/2014 TO 16/06/ 2014, AN ADMISSION WAS MADE THAT FFSL AND SMIL WAS BEING MANAGED AND CONTROLLED BY ENTRY PROVIDER SHRI ANIL AGARWAL. IT HAS ALSO BEEN ALLEGED BY THE REVENUE TH AT INCRIMINATING MATERIAL WAS FOUND FROM THE PREMISES OF SHRI R. K. KEDIA WHICH W AS IN THE SHAPE OF PARALLEL LEDGER ACCOUNTS OF THE UNACCOUNTED TRANSACTIONS WIT H VARIOUS BUSINESS ASSOCIATES INCLUDING SHRI ANIL AGARWAL. HOWEVER, THE AFORESAID STATEMENT / INCRIMINATING MATERIAL, WHICH FORM THE VERY BASIS TO DENY ASSESSE E S CLAIM, WAS NEVER CONFRONTED TO THE ASSESSEE, AS DEMANDED BY IT. NO OPPORTUNITY TO CROSS-EXAMINE THE PERSONS MAKING ADVERSE STATEMENT WAS EVER PROVIDED TO THE A SSESSEE. THE FAILURE TO DO SO WOULD MAKE THE ADDITIONS UNSUSTAINABLE AS PER SETTL ED LEGAL POSITION. UPON PERUSAL OF STATEMENT OF SHRI R.K.KEDIA, IT COULD ALSO BE NO TED THAT ASSESSEE-HUF HAS NOWHERE BEEN MENTIONED AS AN ENTITY WHICH HAS DERIVED BOGUS CAPITAL GAINS. WE FIND THAT LD. AO, REFERRING TO THE SEARCH PROCEEDINGS IN THE CASE OF SHRI R.K.KEDIA, HAD ISSUED SHOW-CAUSE NOTICE TO ASSESSEE ON 23/11/2017 WHICH W AS DULY RESPONDED TO BY THE ASSESSEE THROUGH ITS CHARTERED ACCOUNTANT ON 30/11/ 2017. THE ASSESSEE REPLIED TO EACH AND EVERY QUERY RAISED BY LD. AO. AT THE SAME TIME, THE ASSESSEE DEMANDED DETAILS OF BROKERS WHO GAVE THE STATEMENT THAT THE ASSESSEE HAS TAKEN ACCOMMODATION ENTRIES AND REQUESTED LD.AO TO PROVIDE CROSS-EXAMIN ATION. SIMILAR REQUEST WAS MADE TO CROSS-EXAMINE THE ALLEGED EXIT PROVIDERS. V IDE PARA-6 OF THE REPLY, THE ASSESSEE ALSO DEMANDED A COPY OF INVESTIGATION WING , KOLKATA WHICH HAS ALLEGEDLY MENTIONED THAT THE ASSESSEE HAD GIVEN CASH TO ANYON E FOR GETTING CAPITAL GAINS WITH A REQUEST OF CROSS-EXAMINATION OF THOSE PERSONS. IT W AS SPECIFICALLY ASKED WHETHER THE ASSESSEE WAS NAMED BY ANY BROKER AND OPERATOR AND I F SO, THE ASSESSEE BE ALLOWED CROSS-EXAMINATION SUCH PERSONS. HOWEVER, THE AFORES AID DOCUMENT AS WELL AS CROSS- EXAMINATION WAS NEVER PROVIDED BY LD. AO DESPITE TH E FACT THAT THE SAID MATERIAL / STATEMENT FORMED THE VERY BASIS OF LD. AO S ALLEGATION / CONCLUSION THAT THE GAINS EARNED BY THE ASSESSEE WERE BOGUS IN NATURE. 6.5 EVIDENTLY, THE WHOLE BASIS OF DISREGARDING ASSE SSEES TRANSACTIONS IS THE FINDINGS RENDERED BY INVESTIGATION WING IN THE CASE OF SHRI R.K.KEDIA AND VARIOUS ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 7 OPERATORS, ENTRY PROVIDERS AND STOCK BROKERS. HOWEV ER, THERE IS NOTHING IN THE ORDERS OF LOWER AUTHORITIES WHICH WOULD PROVE THE FACT THA T THE ASSESSEE-HUF WAS SO MENTIONED IN THE STATEMENTS MADE BY ANY OF THESE PE RSONS; RATHER THE BASIS OF ADDITIONS IS THE GENERAL OBSERVATION / CONCLUSION T HAT THE SCRIP OF SMIL WAS PENNY STOCK ENTITY. HOWEVER, THESE STATEMENTS ARE NOT BAC KED BY ANY COGENT CORROBORATIVE MATERIAL ON RECORD TO ESTABLISH THE ASSESSEES INVO LVEMENT IN PRICE RIGGING OF SHARES OF SMIL. NO COLLUSION BETWEEN THE ASSESSEE AND ALLE GED ENTRY PROVIDERS OR OPERATORS OR EXIT PROVIDERS IS SHOWN TO HAVE EXISTED. ANOTHER NOTEWORTHY POINT IS THAT NO OPPORTUNITY TO CROSS-EXAMINE THE PERSONS MAKING ADV ERSE STATEMENT WAS PROVIDED TO THE ASSESSEE DESPITE BEING SPECIFICALLY POINTED OUT BEFORE LOWER AUTHORITIES. THERE IS NO ADMISSION OR EVIDENCE BASED FINDING THAT ANY CAS H GOT EXCHANGED BETWEEN THE ASSESSEE AND ANY OF THE ALLEGED BOGUS ENTITIES. IT IS TRITE LAW THAT NO ADDITIONS COULD BE MADE MERELY ON THE BASIS OF SUSPICION, CONJECTUR ES OR SURMISE. THE ADDITION THUS MADE PURELY ON THE BASIS OF THIRD-PARTY STATEMENT R ECORDED AT THE BACK OF THE ASSESSEE COULD NOT BE SUSTAINED IN THE EYES OF LAW UNLESS THE SAME ARE CONFRONTED TO THE ASSESSEE AND THE SAME ARE BACKED BY ANY CORROBO RATIVE MATERIAL. NO EFFECTIVE INVESTIGATION IS SHOWN TO HAVE BEEN CARRIED OUT BY LD. AO TO DISLODGE THE ASSESSEES CLAIM BY BRINGING ON RECORD COGENT EVIDENCES AS WEL L AS CONFRONTING THE SAME. HOWEVER, EXCEPT FOR GENERAL ALLEGATIONS AS NARRATED IN THE INVESTIGATION WING REPORT, THERE IS NO EVIDENCE WHICH WOULD LINK ASSESSEES IN VOLVEMENT IN JACKING UP THE PRICES OF THE SHARES WITH A VIEW TO EARN ARTIFICIAL GAINS. 6.6 THE FAILURE TO CONFRONT ADVERSE MATERIAL AND PR OVIDE CROSS-EXAMINATION OF PERSONS MAKING ADVERSE STATEMENT WOULD GROSSLY BREA CH THE PRINCIPLES OF NATURAL JUSTICE WHICH WOULD MAKE THE ADDITIONS FATAL IN THE EYES OF LAW AS PER THE DECISION OF HONBLE APEX COURT IN KISHANCHAND CHELLARAM V/S CIT (125 ITR 713) AND ALSO IN M/S ANDAMAN TIMBER INDUSTRIES V/S CCE (CA NO.4228 O F 2006 DATED 02/09/2015) WHEREIN IT HAS BEEN HELD THAT NOT ALLOWING THE ASSE SSEE TO CROSS-EXAMINE THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENT OF THOSE WITNESSES WERE MADE THE BASIS OF THE IMPUGNED ORDER, IS A SERIOUS FLAW WHICH MAKES THE ORDER NULLITY IN AS MUCH AS IT AMOUNTS TO VIOLATION OF PRINCIPAL OF NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTED. SIMILAR IS THE RATIO OF DECISION OF HONBLE BOMBAY HIGH COURT IN H.R.MEHTA V/S ACIT (387 ITR 561). AS A MATTER OF FACT, THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN GARGI DEVI JWALA PRASAD V/S CIT (1974 96 ITR 97) AS REFERRED TO BY LD. CIT(A), ALSO SUPPORT THE PROP OSITION THAT THE PRINCIPLES OF NATURAL JUSTICE ARE APPLICABLE TO ASS ESSMENT PROCEEDINGS. THE ELEMENTARY PRINCIPLE OF NATURAL JUSTICE IS THAT THE ASSESSEE SHOULD HAVE KNOWLEDGE OF THE MATERIAL THAT IS GOING TO BE USED AGAINST HIM S O THAT HE MAY BE ABLE TO MEET IT. 6.7 THE LD. CIT-DR HAS SUBMITTED THAT THE STATEMENT OF SHRI CHANDRAKANT MANE & SHRI NIRMAL SINGH MERTIA (DIRECTORS OF FFSL) WAS CONFRONTED TO THE ASSESSEE BY WAY OF QUESTION NOS. 11 & 12 IN STATEMENT RECORDED FROM SHRI ANIL AGARWAL ON 27/08/2015. HOWEVER, WE FIND THAT THE ASSESSEE, IN REPLY, HAS DENIED HAVING KNOWN THESE PERSONS. MOREOVER, NO OPPORTUNITY TO CROSS-EX AMINE THESE PERSONS HAS EVER BEEN PROVIDED TO THE ASSESSEE. THE STATEMENT OF SHR I VICKY AGARWAL & SHRI HITESH J. KANJAR OF M/S CSL, AS PLACED IN THE PAPER-BOOK BY L D. CIT-DR, IS STATEMENT MADE DURING SURVEY OPERATIONS, WHICH ON STANDALONE BASIS WOULD NOT HOLD MUCH EVIDENTIARY VALUE. MOREOVER, UPON PERUSAL OF THE SA ME, WE FIND THAT NONE OF THESE ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 8 STATEMENTS IMPLICATE ASSESSEE AS THE BENEFICIARY OF BOGUS CAPITAL GAINS. SIMILARLY, THE STATEMENT OF SHRI ANUJ AGARWAL OF KORP SECURITIES L TD. RECORDED ON 30/03/2015 AND STATEMENT OF SHRI PRAVIN KUMAR AGARWAL OF M/S GATEW AY FINANCIAL SERVICES LTD. RECORDED ON 10/02/2015 ARE STATEMENTS MADE DURING S URVEY OPERATIONS AND THE SAME DO NOT NAME THE ASSESSEE-HUF TO BE THE BENEFICIARY OF BOGUS CAPITAL GAINS. THE STATEMENT OF REMAINING SHARE-BROKERS / EXIT PROVIDE RS AS PLACED BY LD. CIT-DR IN THE PAPER-BOOK WAS NEITHER CONFRONTED TO THE ASSESSEE N OR AN OPPORTUNITY OF CROSS- EXAMINATION HAVE EVER BEEN PROVIDED TO THE ASSESSEE AND THEREFORE, THESE ARE TO BE DISREGARDED. FURTHER, THESE STATEMENTS HAVE NOT BEE N SUBSTANTIALLY REFERRED TO BY LD. AO OR LD. CIT(A) IN THEIR RESPECTIVE ORDERS WHILE A DJUDICATING THE ISSUE AND THEREFORE, WOULD NOT CARRY MUCH WEIGHT AT THIS STAG E OF APPELLATE PROCEEDINGS. IN OUR CONSIDERED OPINION, MERELY BECAUSE THE SCRIP OF SMI L HAS BEEN ALLEGED AS A PENNY STOCK, THE SAME ALONE WOULD NOT BE SUFFICIENT TO TA INT THE GAINS EARNED BY THE ASSESSEE-HUF UNLESS A LINK OR ASSESSEES COLLUSION WITH THE ENTRY / EXIT PROVIDERS WAS ESTABLISHED BY THE REVENUE. THE CONCLUSIONS DRAWN B Y LD. AO ARE MERELY ON THE BASIS OF STATEMENT TAKEN AT THE BACK OF THE ASSESSEE. FUR THER, THE STATEMENT MADE DURING SURVEY OPERATIONS, UNLESS BACKED BY CORROBORATIVE M ATERIAL, WOULD NOT HOLD MUCH EVIDENTIARY VALUE. THE COPY OF REPORT OF INVESTIGAT ION WING, KOLKATA, AS DEMANDED BY THE ASSESSEE, WAS ALSO NEVER PROVIDED. THEREFORE, R EFERENCE TO ALL THESE STATEMENTS BY LD. CIT-DR, IN OUR CONSIDERED OPINION, WOULD FAIL T O BOLSTER THE CASE OF THE REVENUE. 6.8 ANOTHER ARGUMENT RAISED BY LD. CIT-DR IS THAT T HE ASSESSEE HAS CARRIED OUT ALL THE TRADING TRANSACTIONS THROUGH ITS OWN GROUP CONCERN M/S CSL WHICH IS CONTROLLED AND MANAGED BY KARTA OF ASSESSEE-HUF AND THEREFORE, THE DEMAND OF CROSS-EXAMINATION DEFY ANY REASONING. HOWEVER, AS N OTED BY US, THE PRIMARY REASON TO TRIGGER ADDITION IN THE HANDS OF THE ASSESSEE IS SEARCH FINDINGS IN THE CASE OF SHRI R.K.KEDIA GROUP WHEREIN IT HAS BEEN SUBMITTED THAT SMIL AND FFSL WERE PENNY STOCK. HOWEVER, IT WAS NOWHERE ADMITTED THAT THE GA INS EARNED BY THE ASSESSEE-HUF WERE ALSO TAINTED. THE KARTA OF ASSESSEE-HUF ALSO D ID NOT ADMIT THE SAME. THEREFORE, THIS PLEA IS MISPLACED. SIMILARLY, THE PLEA THAT CE RTAIN ADDITIONS OF UNACCOUNTED COMMISSION HAS BEEN MADE IN THE HANDS OF M/S CSL WH ICH HAS BEEN ACCEPTED, WOULD ALSO NOT CARRY MUCH WEIGHT TO DECIDE THE GENUINENES S OF GAINS EARNED BY ASSESSEE- HUF. THE LD. CIT-DR ALSO ADVANCED ARGUMENT TO SUBMI T THAT THE REPORT OF INVESTIGATION WING, KOLKATA WAS UPLOADED ON THE INT ERNET AND HENCE, THERE COULD BE NO GRIEVANCE TO THE ASSESSEE BY NON-FURNISHING OF T HE SAME. HOWEVER, THE SAID PLEA WOULD NOT MEET OUR APPROVAL IN VIEW OF THE FACT THA T THE ADVERSE MATERIAL AS WELL AS CROSS-EXAMINATION WAS SPECIFICALLY DEMANDED BY THE ASSESSEE AND LD. AO WAS UNDER AN OBLIGATION TO DO SO TO SUSTAIN ADDITIONS IN THE HANDS OF THE ASSESSEE. 6.9 THE PROPOSITION THAT THAT ADDITIONS MADE PURELY ON THE BASIS OF SUSPICIOUS, CONJECTURES OR SURMISES COULD NOT BE SUSTAINED IN T HE EYES OF LAW STEM FROM THE DECISION OF HONBLE SUPREME COURT IN OMAR SALAY MOHAMED SAIT V/S CIT (1959 37 ITR 151) WHEREIN IT WAS HELD THAT THE SUSPICION HOWEVER STRO NG COULD NOT PARTAKE THE CHARACTER OF LEGAL EVIDENCE AS HELD BY HONBLE SUPREME COURT IN UMACHARAN SHAW & BROS. V/S CIT (1959 37 ITR 271) . THE ADDITIONS MADE ON MERE PRESUMPTIONS COULD NOT BE SUSTAINED AND THERE MUST BE SOMETHING MORE THAN MERE SUSPICION TO SUPPORT THE ASSESSMENT AS PER THE DECI SION OF HONBLE APEX COURT IN DHAKESHWARI COTTON MILLS LTD. V/S CIT (26 ITR 775). THE ASSESSMENT SHOULD NOT BE ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 9 BASED MERELY ON SUSPICION OR GUESS WORK BUT ON LEGI TIMATE MATERIAL FROM WHICH REASONABLE INFERENCE OF INCOME COULD HAVE BEEN DRAW N. 6.10 SO FAR AS ALLEGED ADMISSION BY SHRI ANIL AGARW AL IS CONCERNED, WE FIND THAT THE SEARCH ACTION ON SHRI R.K.KEDIA GROUP TRIGGERED SURVEY ACTION ON M/S CSL ON 10/04/2015 WHEREIN STATEMENT OF SHRI ANIL AGARWAL W AS RECORDED. IN THE STATEMENT, IT WAS SUBMITTED THAT M/S CSL WAS ACTING AS STOCK-B ROKER IN VARIOUS STOCK EXCHANGES AND STATED TO HAVE PROVIDED BROKERAGE AND CONSULTAN CY SERVICES TO MANY ENTITIES INCLUDING FFSL AND SMIL. IN REPLY TO QUESTION NO.21 , IT WAS SUBMITTED THAT KYC OF THE CUSTOMERS IS REGULARLY VERIFIED. NOTHING ADVERS E IS ADMITTED SO FAR AS THE GAINS EARNED BY ASSESSEE-HUF IS CONCERNED. SUBSEQUENTLY, A SEARCH ACTION WAS CARRIED OUT BY DEPARTMENT IN THE CASE OF THE ASSESSEE-HUF ON 09 /04/2015 WHEREIN STATEMENT ON OATH OF SHRI ANIL AGARWAL WAS RECORDED U/S 132(4) O N 12/04/2015. A COPY OF THE SAME IS ON RECORD. IN THE STATEMENT, IT WAS REITERA TED THAT M/S CSL PROVIDED BROKERAGE AND CONSULTANCY SERVICES TO MANY ENTITIES INCLUDING FFSL AND SMIL. SHRI ANIL AGARWAL ADMITTED TO HAVE KNOWN DIRECTORS OF TH ESE TWO ENTITIES. REGARDING LOSSES SUFFERED BY CLIENTS OF M/S CSL IN TRADING OF VARIOUS SCRIPS INCLUDING FFSL AND SML, IT WAS SUBMITTED THAT THE TRANSACTIONS WAS A P ATTERN OF TRANSACTION THROUGH STOCK EXCHANGE TO OBTAIN BOGUS LTCG AND SHORT TERM CAPITAL LOSSES BY THE BENEFICIARIES. IN REPLY TO QUESTION NO.8, THE MODUS -OPERANDI OF BOGUS LCTG / STCL ENTRY OBTAINED BY THE BENEFICIARY WAS EXPLAINED. HO WEVER, THE SAME IS GENERAL ELABORATION AND DO NOT TAINT THE TRANSACTIONS CARRI ED OUT BY THE ASSESSEE-HUF. REGARDING ROLE OF SHRI ANIL AGARWAL, IT WAS SUBMITT ED THAT HE INTRODUCED THE DIRECTORS OF FFSL AND RUTRON INTERNATIONAL LTD. TO THREE INDIVIDUAL NAMELY SHRI PARAS CHAPLOT, SHRI PANKAJ SHAH AND SHRI VINAY JAIN WHO WERE PRIMARILY ENGAGED IN PROVIDING ENTRY OF LTCG. SOME CLIENTS CONTACTED SHRI ANIL AGARWAL TO OBTAIN BOGUS LTCG, WHO WERE THEN INTRODUCED TO THE THREE E NTRY PROVIDERS. THE CLIENTS INTRODUCED BY THE THREE ENTRY PROVIDERS BECAME CLIE NTS OF M/S CSL AND KYC DOCUMENTS WERE OBTAINED. HOWEVER, NO PHYSICAL VERIF ICATION OF THE PREMISES WAS STATED TO HAVE BEEN DONE. THE PRICES WERE RIGGED TO PROVIDE ENTRY OF LTCG / STCL TO THE BENEFICIARIES. HOWEVER, THERE IS NO ADMISSION A S TO THE FACT THAT ASSESSEES GAINS WERE ALSO OBTAINED IN SUCH A MANNER. IN REPLY TO QU ESTION NO.12, SHRI ANIL AGARWAL HAS OFFERED AN ADDITIONAL BROKERAGE INCOME OF RS.20 LACS ON ACCOUNT OF CASH COMMISSIONS. NO REPLY TO QUESTION NO.13 HAS BEEN GI VEN WHEREIN A QUESTION WAS PUT AS TO LTCG EARNED ON SALE OF SCRIP OF FFSL. UPON PE RUSAL OF THE SAME, IT COULD BE GATHERED THAT SHRI ANIL AGARWAL HAS NOT MADE ANY AD MISSION THAT THE GAINS EARNED BY THE ASSESSEE-HUF ON SALE OF SHARES OF SMIL AND F FSL WERE BOGUS IN NATURE. PROCEEDING FURTHER, IT IS TO BE NOTED THAT THIS STA TEMENT ALSO HAS BEEN RETRACTED IMMEDIATELY BY WAY OF AN AFFIDAVIT UNDER THE COVER OF LETTER DATED 14/04/2015 BY ASSESSEE TO DGIT(INV.), MUMBAI, INTER-ALIA, ON ACCO UNT OF THE FACT THAT THE EARLIER STATEMENT WAS GIVEN UNDER THREAT AND UNDUE INFLUENC E BY PRESSURE. THE RETRACTION WITHIN SUCH SHORT SPAN OF TIME WOULD DRASTICALLY RE DUCE EVIDENTIARY VALUE OF THE STATEMENT PARTICULARLY IN VIEW OF THE FACT THAT THE STATEMENT MADE ON 12/04/2015 IS NOT BACKED UP BY ANY CORROBORATIVE INCRIMINATING MA TERIAL AS FOUND DURING THE COURSE OF SEARCH OPERATIONS. THEREFORE, FIRSTLY IT COULD NOT BE SAID THAT THERE WAS ADMISSION AS TO BOGUS NATURE OF THE TRANSACTIONS CA RRIED OUT BY THE ASSESSEE-HUF AND SECONDLY, THE STATEMENT MADE BY THE ASSESSEE, UNLES S BACKED UP BY CORROBORATIVE MATERIAL, COULD NOT FORM THE SOLE BASIS OF MAKING A DDITIONS IN THE HANDS OF THE ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 10 ASSESSEE. IT TRANSPIRES THAT ANOTHER STATEMENT WAS RECORDED FROM SHRI ANIL AGARWAL ON 27/08/2015 DURING THE COURSE OF ASSESSMENT PROCE EDINGS. IN REPLY TO QUESTION NO.21, THE ASSESSEE DENIED HAVING INDULGED IN PROVI DING ACCOMMODATION ENTRIES. SHRI ANIL AGARWAL MAINTAINED THAT M/S CSL PROVIDED CONSULTANCY SERVICES TO FFSL. HE ALSO DENIED HAVING MET SHRI CHANDRAKANT MANE (DI RECTOR OF FFSL). HE ALSO DENIED HAVING MANIPULATED SHARE PRICES OF SMIL. IT WAS FURTHER SUBMITTED THAT ENTIRE PROCESS OF TRADING TOOK PLACE IN ONLINE MECHANISM T HROUGH THE STOCK EXCHANGE PLATFORM. HE ALSO DENIED HAVING CARRIED OUT ANY ACC OMMODATION ENTRIES. THEREFORE, THERE IS NO ADMISSION BY SHRI ANIL AGARWAL IN THIS STATEMENT ALSO WHICH IS RELATED TO GAINS EARNED BY ASSESSEE-HUF. 6.11 SO FAR AS THE SEBI REPORT DATED 02/04/2018 IS CONCERNED, THE SAME IS NOT IN RESPECT OF SCRIP OF SMIL. IN FACT SEBI, VIDE ITS LE TTERS DATED 31/10/2017 & 11/10/2017 AS WRITTEN TO THE DEPARTMENT HAS CLEARLY MENTIONED THAT THERE WAS NO VIOLATION OF SEBI ACT OR REGULATION IN CASE OF SMIL. THEREFORE, THE SAME WOULD NOT BE OF MUCH RELEVANCE FOR THIS YEAR. 6.12 ANOTHER IMPORTANT ASPECT TO BE NOTED IS THAT T HE ASSESSEE WAS SUBJECTED TO SEARCH ACTION ON 09/04/2015. THE RETURN FOR AY 2010 -11 WAS ALREADY FILED BY THE ASSESSEE ON 28/07/2010 WHEREIN CAPITAL GAINS EARNED DURING THE YEAR WERE DULY DISCLOSED. THE CASE WAS NOT PICKED UP FOR SCRUTINY. THE TIME LIMIT TO ISSUE NOTICE U/S 143(2) FOR THE YEAR HAD ALREADY EXPIRED ON 30/09/20 11. NO PROCEEDINGS WERE PENDING AGAINST THE ASSESSEE FOR THIS YEAR ON THE D ATE OF SEARCH. HENCE, IT WAS NON- ABATED YEAR. THEREFORE, THE ADDITION, WHICH COULD H AVE BEEN MADE, WAS TO BE ONLY WITH RESPECT TO ANY INCRIMINATING MATERIAL FOUND DU RING THE COURSE OF SEARCH. WE FIND THAT THERE IS NOTHING ON RECORD WHICH WOULD SHOW TH AT ANY SUCH MATERIAL WAS FOUND FROM THE POSSESSION OF THE ASSESSEE DURING SEARCH. IN FACT, LD. CIT(A) HAS REJECTED THIS PLEA BY OBSERVING THAT THE STATEMENT MADE BY T HE ASSESSEE DURING SEARCH PROCEEDINGS, IN THE BACKDROP OF FINDINGS OF INVESTI GATION WING AND THE STATEMENTS MADE BY SHRI R.K.KEDIA AND CERTAIN SHARE-BROKERS OF KOLKATA (SHRI ANUJ AGARWAL DURING SURVEY ON KORP SECURITIES ON 31/03/2015 AND SHRI PRAVEEN KUMAR AGGARWAL DURING SURVEY ON GATEWAY FINANCIAL SERVICES LTD. ON 11/02/2015), WOULD CONSTITUTE INCRIMINATING MATERIAL. HOWEVER, IT IS TO BE NOTED THAT ALL THESE STATEMENTS WERE RECORDED WELL BEFORE THE DATE OF SEARCH ON ASSESSEE AND FOR ASSESSEES CASE, THESE STATEMENTS COULD NOT BE SAID TO BE INCRIMINATING MA TERIAL FOUND DURING THE COURSE OF SEARCH. THE REPORT OF INVESTIGATION WING, KOLKATA I DENTIFYING 32 STOCKBROKERS WITH RESPECT TO 84 SCRIPS, AS REFERRED TO BY THE LOWER A UTHORITIES, WAS RECEIVED ON 27/04/2015 I.E. MUCH AFTER THE DATE OF SEARCH ON AS SESSEE AND THEREFORE, THE SAME WOULD ALSO COULD NOT BE SAID TO BE INCRIMINATING MA TERIAL FOUND DURING THE COURSE OF SEARCH ON ASSESSEE. THE LD. CIT-DR HAS POINTED OUT THAT A SURVEY ACTION WAS CONDUCTED U/S 133A ON FFSL AND MANY INCRIMINATING M ATERIAL WAS FOUND THEREIN WHICH WOULD CONSTITUTE INCRIMINATING MATERIAL TO IM PLICATE ASSESSEE. HOWEVER, WE ARE UNABLE TO ACCEDE TO THIS PLEA SINCE THIS MATERI AL COULD NOT BE SAID TO HAVE BEEN FOUND DURING SEARCH ON ASSESSEE-HUF. SECONDLY, THIS MATERIAL HAS BEEN REFERRED TO IN THE STATEMENT OF SHRI CHANDRAKANT MANE. THE KARTA O F ASSESSEE-HUF HAS ALL ALONG DENIED HAVING EVER MET SHRI CHANDRAKANT MANE. THERE FORE, THIS PLEA WOULD NOT HOLD MUCH WATER. THE LD. CIT-DR HAS ALSO PLEADED THAT TH E ISSUE OF INCRIMINATING MATERIAL WAS RAISED FOR THE FIRST TIME BEFORE LD. C IT(A) AND LD. AO HAD NO OCCASION ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 11 TO DEAL WITH THIS ISSUE DURING THE ASSESSMENT PROCE EDINGS. WE FIND THAT ADDITIONAL GROUND, BEING LEGAL GROUND, COULD BE TAKEN-UP BY TH E ASSESSEE FOR THE FIRST TIME BEFORE APPELLATE AUTHORITIES. THE GROUND WAS VALIDL Y ADMITTED AND DELVED INTO BY LD. CIT(A). NO INFIRMITY COULD BE FOUND IN THE ACTION O F LD. CIT(A) IN ADJUDICATING THE SAME. SO FAR AS THE INCRIMINATING MATERIAL IN THE F ORM OF ASSESSEES OWN STATEMENT IS CONCERNED, WE FIND THAT FIRSTLY NO ADMISSION AS ALL EGED BY LOWER AUTHORITIES WAS MADE AND SECONDLY, THE SAID STATEMENT STOOD RETRACT ED IMMEDIATELY ON 14/04/2015. THEREFORE, SINCE THE STATEMENT STOOD REJECTED IMMED IATELY AFTER MAKING THEREOF, THE SAME WOULD LOSE SUBSTANTIAL EVIDENTIARY VALUE. IN S UCH A CASE, THE ONUS WOULD BE ON REVENUE TO ESTABLISH THAT THE EARLIER ADMISSION MAD E WAS BACKED UP BY SOME COGENT / CORROBORATIVE MATERIAL ON RECORD AND THE RETRACTION WAS NOT VALID ONE. HOWEVER, WE FIND THAT THERE IS NO SUCH MATERIAL WITH THE REVENU E WHICH WOULD CORROBORATE ASSESSEES STATEMENT THAT THE GAINS WERE BOGUS IN N ATURE. ANY STATEMENT ON OATH, TO BE VALID, HAS TO BE SUPPORTED BY CORROBORATIVE EVID ENCES. THUS, THE STATEMENT MADE BY THE ASSESSEE, IN OUR CONSIDERED OPINION, COULD N OT BE CONSIDERED AS INCRIMINATING MATERIAL WHICH WOULD JUSTIFY ADDITIONS IN THE HANDS OF THE ASSESSEE. THE PROPOSITION THAT NO ADDITION COULD BE MADE IN T HE CASE OF NON-ABATED ASSESSMENT EXCEPT WITH REFERENCE TO INCRIMINATING MATERIAL FOU ND DURING SEARCH ACTION HAS BEEN EXPOUNDED BY HONBLE BOMBAY HIGH COURT IN CIT V/S CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. 374 ITR 645. THE RATIO OF THIS DECISION HAS RECENTLY BEEN APPLIED BY COORDINATE BENCH, ON SIMIL AR FACTS AND CIRCUMSTANCES, IN THE GROUP CASE OF SMT. KALPANA MUKESH RUIA V/S DCIT & ORS. (ITA NO.6519/MUM/2019 & ORS) ORDER DATED 31/12/2020 . IN THIS DECISION, THE COORDINATE BENCH, REFERRING TO ANOTHER DECISION OF TRIBUNAL IN SHRI VIJAYRATTAN BALKRISHAN MITTAL VS. DCIT & ORS. (ITA NO. 3427 TO 3429/MUM/20 19 DATED 01/10/2019 , HELD AS UNDER: - 39. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AN D PERUSED THE RECORDS. FIRSTLY ISSUE IN APPEAL IS THAT IN ASSESSMENT FRAME D UNDER SECTION 153(A) IN CASE OF THE UNABATED ASSESSMENT ADDITION WITHOUT RE FERENCE TO INCRIMINATING MATERIAL IS NOT SUSTAINABLE. THIS ISSUE HAS BEEN CL EARLY SPELT OUT AND AFFIRMED BY HONOURABLE JURISDICTIONAL HIGH COURT IN THE CATE NA OF CASE LAWS INCLUDING THAT OF CONTINENTAL WAREHOUSING (SUPRA). 40. THE LEARNED DEPARTMENTAL REPRESENTATIVE AND THE LEARNED CIT APPEALS HAVE TRIED TO DISTINGUISH THIS DECISION FROM HON BLE BOMBAY HIGH COURT BY REFERRING TO HON BLE DELHI HIGH COURT DECISION IN THE CASE OF KABUL CHAWLA (SUPRA). 41. IN THIS REGARD WE ARE OF THE CONSIDERED OPINION THAT THE DECISION FROM HONOURABLE JURISDICTIONAL HIGH COURT IN CONTINENTAL WAREHOUSING (SUPRA) IS CLEAR AND UNAMBIGUOUS. IT WAS CLEARLY HELD IN THAT CASE THAT ASSESSMENTS WHICH ARE NOT PENDING AND WHICH HAVE ATTAINED FINAL ITY, ADDITION UNDER SECTION 153(A) CANNOT BE DONE WITHOUT REFERENCE TO INCRIMINATING SEIZED MATERIAL. WE MAY GAINFULLY REFER TO THE RELEVANT OR DER OF THE HONOURABLE HIGH COURT AS UNDER: 'ON A PLAIN READING OF SECTION 153A, IT BECOMES CLE AR THAT ON INITIATION OF THE PROCEEDINGS UNDER SECTION 153A, I T IS ONLY THE ASSESSMENT/REASSESSMENT PROCEEDINGS THAT ARE PENDIN G ON THE DATE OF ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 12 CONDUCTING SEARCH UNDER SECTION 132 OR MAKING REQUI SITION UNDER SECTION 132(4) STAND ABATED AND NOT THE ASSESSMENTS /REASSESSMENTS ALREADY FINALISED FOR THOSE ASSESSMENT YEARS COVERE D UNDER SECTION 153A. BY A CIRCULAR NO. 8 OF 2003, DATED 18-9-2003 (SEE 263 ITR (ST) 61 AT 107) THE CBDT HAS CLARIFIED THAT ON INIT IATION OF PROCEEDINGS UNDER SECTION 153A, THE PROCEEDINGS PEN DING IN APPEAL, REVISION OR RECTIFICATION PROCEEDINGS AGAINST FINAL ISED ASSESSMENT/REASSESSMENT SHALL NOT ABATE. IT IS ONLY BECAUSE, THE FINALISED ASSESSMENTS/REASSESSMENTS DO NOT ABATE, T HE APPEAL REVISION OR RECTIFICATION PENDING AGAINST FINALISED ASSESSMENT/ REASSESSMENTS WOULD NOT ABATE. THEREFORE, THE ARGUM ENT OF THE REVENUE, THAT ON INITIATION OF PROCEEDINGS UNDER SE CTION 153A, THE ASSESSMENTS/REASSESSMENTS FINALISED FOR THE ASSESSM ENT YEARS COVERED UNDER SECTION 153A STAND ABATED CANNOT BE A CCEPTED. SIMILARLY ON ANNULMENT OF ASSESSMENT MADE UNDER SEC TION 153A(1) WHAT STANDS REVIVED IS THE PENDING ASSESSMENT/REASS ESSMENT PROCEEDINGS WHICH STOOD ABATED AS PER SECTION 153A( 1).' 'ONCE IT IS HELD THAT THE ASSESSMENT HAS ATTAINED F INALITY, THEN THE ASSESSING OFFICER WHILE PASSING THE INDEPENDENT ASS ESSMENT ORDER UNDER SECTION 153A READ WITH SECTION 143(3) COULD N OT HAVE DISTURBED THE ASSESSMENT/REASSESSMENT ORDER WHICH H AS ATTAINED FINALITY, UNLESS THE MATERIALS GATHERED IN THE COUR SE OF THE PROCEEDINGS UNDER SECTION 153A ESTABLISH THAT THE R ELIEFS GRANTED UNDER THE FINALISED ASSESSMENT/REASSESSMENT WERE CO NTRARY TO THE FACTS UNEARTHED DURING THE COURSE OF 153A PROCEEDIN GS. IF THERE IS NOTHING ON RECORD TO SUGGEST THAT ANY MATERIAL WAS UNEARTHED DURING THE SEARCH OR DURING THE 153A PROCEEDINGS, THE ASSE SSING OFFICER WHILE PASSING ORDER UNDER SECTION 153A READ WITH SE CTION 143(3) CANNOT DISTURB THE ASSESSMENT ORDER.' 42. A READING OF THE ABOVE MAKES IT CLEAR THAT IT W AS EXPOUNDED THAT IN CASE OF ASSESSMENTS WHICH HAVE ATTAINED FINALITY NO ADDI TION UNDER SECTION 153(A) CAN BE DONE WITHOUT SEIZED INCREMENTING MATERIAL. I N THIS REGARD, THE LEARNED DEPARTMENTAL REPRESENTATIVE AND LEARNED CIT APPEALS HAVE TRIED TO MAKE OUT A CASE THAT IN THE PRESENT CASES BEFORE US THE EARL IER ASSESSMENTS WERE NOT UNDER SECTION 143 (3). HENCE THE RATIO FROM HONOURA BLE JURISDICTIONAL HIGH COURT DECISION WILL NOT APPLY HERE. THE LEARNED DEP ARTMENTAL REPRESENTATIVE HAS MENTIONED THAT HONOURABLE HIGH COURT HAS REFERR ED ABOUT ASSESSMENTS WHICH HAVE BEEN FINALIZED. 43. IN OUR CONSIDERED OPINION, THE HONOURABLE JURIS DICTIONAL HIGH COURT HAS NEVER MENTIONED THAT IT IS ONLY ASSESSMENT WHICH HA S BEEN COMPLETED UNDER SECTION 143(3) THAT ADDITION UNDER SECTION 153(A) C ANNOT BE DONE WITHOUT REFERENCE TO INCRIMINATING SEIZED MATERIAL. HONOURA BLE JURISDICTIONAL HIGH COURT HAS CLEARLY MENTIONED THAT IT IS THOSE ASSESS MENTS WHICH ARE UNABATED, THAT IS NOT PENDING, TO WHICH THE ABOVE SAID RATIO WILL APPLY. ASSESSMENTS WHICH ARE NOT PENDING ARE NOT ONLY THOSE WHICH HAVE BEEN COMPLETED UNDER SECTION 143(3) BUT ALSO THOSE FOR WHICH THE TIME FO R ISSUING NOTICE UNDER ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 13 SECTION 143(2) HAVE ALREADY ELAPSED. IN OTHER WORDS THE REFERENCES IS TO THOSE ASSESSMENTS IN WHOSE CASE ASSESSMENT UNDER SE CTION 143 (3) CANNOT NOW BE DONE. IT IS NOT AT ALL THE CASE OF THE REVEN UE THAT IN THE APPEALS WHICH HAVE BEEN CLAIMED AS UNABATED HERE THERE WAS TIME F OR ASSESSMENT UNDER SECTION 143(3). IN THIS VIEW OF THE MATTER, IN OUR CONSIDERED OPINION, THE SUBMISSION OF THE LEARNED COUNSEL OF THE ASSESSEE S UCCEEDS THAT ADDITION IN THE CASE OF UNABATED ASSESSMENT WITHOUT REFERENCE T O INCRIMINATING SEIZED MATERIAL FOR ASSESSMENT U/S.153(A) IS NOT SUSTAINAB LE ON THE TOUCHSTONE OF ABOVE SAID HONOURABLE JURISDICTIONAL HIGH COURT DEC ISION. THEREFORE, THE LEARNED CIT APPEALS AND THE LEARNED DEPARTMENTAL RE PRESENTATIVE PLEA IN TRYING TO DISTINGUISH THE SAME BY REFERENCE TO HON BLE DELHI HIGH COURT DECISION AND HONOURABLE SUPREME COURT DECISION IN T HE CASE OF RAJESH JHAVERI (SUPRA) DOESN T SUCCEED. 44. IT MAY NOT BE OUT OF PLACE HERE TO MENTION THAT IT IS SPECIFICALLY PROVIDED IN SECTION 153A THAT ASSESSMENT OR REASSESSMENT IF ANY RELATING TO ANY RELEVANT ASSESSMENT YEAR OR YEARS REFERRED TO IN TH IS SUBSECTION PENDING ON THE DATE OF INITIATION OF SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A AS THE CASE MAY BE SHALL ABATE. THIS MAKES IT FURTHER ABUNDANTLY CLEAR THAT ONLY THOSE ASSESSMENTS WHICH ARE PENDING ABATE. HENCE SANGUINE PROVISIONS OF THE ACT READ WITH HONO URABLE JURISDICTIONAL HIGH COURT DECISION AS ABOVE MAKE IT ABUNDANTLY CLE AR THAT THE ASSESSMENTS WHICH DO NOT ABATE AND ASSESSMENT AND ADDITION UNDE R SECTION 153 A WITHOUT REFERENCE TO INCRIMINATING SEIZED MATERIAL IS NOT S USTAINABLE. 45. THE JURISPRUDENCE REGARDING JURISDICTIONAL DEFE CT IN ASSESSMENT UNDER SECTION 153A /153C WITHOUT REFERENCE TO INCRIMINATI NG SEIZED MATERIAL HAS ALSO BEEN EXPOUNDED BY HONOURABLE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. SINGHAD TECHNICAL ED UCATION SOCIETY IN CIVIL APPEAL NO. 11080 OF 2017 AND OTHERS. IN THIS REGARD THE HONOURABLE SUPREME COURT IN PARAGRAPH 18 OF THE SAID ORDER OBSERVED TH AT :- IN THIS BEHALF IT WAS NOTED BY THE ITAT THAT AS PER PROVISIONS OF SECTION 153C OF THE ACT,, INCRIMINATING MATERIAL WH ICH WAS SEIZED HAD TO PERTAINS TO ASSESSMENT YEARS IN QUESTION AND IT IS AN UNDISPUTED FACT THAT THE DOCUMENTS WHICH WERE SEIZE D DID NOT ESTABLISH ANY CORRELATION, DOCUMENT WISE, WITH THE SE FOR ASSESSMENT YEARS SINCE THIS REQUIREMENT UNDER SECTION 153C OF THE ACT IS ESSENTIAL FOR ASSESSMENT UNDER THE PROVISION IT BEC OMES A JURISDICTIONAL DEFECT. WE FIND THIS REASONING TO BE LOGICAL AND VALID HAVING REGARD TO THE PROVISIONS OF SECTION 153C OF THE ACT. 46. WE ALSO NOTE THAT THE CO-ORDINATE BENCH OF ITAT IN THE CASE OF SHRI VIJAYRATTAN BALKRISHAN MITTAL (SUPRA) IN SIMILAR SITUATION HELD THAT, DEHORSE INCRIMINATING MATERIAL ASSESSMENT U/S.153A IS NOT SUSTAINABLE IN THE CASE OF UNABATED ASSESSMENT. WE MAY GAINFULLY REFER TO THE SAID DECISION AS UNDE R: 44. AFTER HEARING BOTH THE PARTIES AND PERUSING THE FACTS ON RECORD, WE OBSERVED THAT UNDISPUTABLY THE ASSESSMENT IN THE IN STANT YEAR HAS NOT ABATED ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 14 ON THE DATE OF SEARCH. WE FURTHER FIND THAT THE EVI DENCES WERE GATHERED AFTER ISSUING NOTICE UNDER SECTION 133(6) THAT ASSESSEE H AS CARRIED OUT SYNCHRONIZED TRADES FOR OBTAINING BOGUS LTCG. IN OU R OPINION, THE SAID INFORMATION/DATA IS COLLECTED AFTER THE DATE OF SEA RCH AND DOES NOT CONSTITUTE INCRIMINATING MATERIAL FOUND AND SEIZED DURING THE COURSE OF SEARCH. KEEPING IN VIEW THE SAID FACTS AND CIRCUMSTANCES, W E ARE OF THE CONSIDERED VIEW THAT ADDITION TO THE INCOME OF THE ASSESSEE CA N ONLY BE MADE ON THE BASIS OF INCRIMINATING RECORD FOUND DURING THE COUR SE OF SEARCH. IN THE PRESENT CASE, THERE IS NO SUCH INCRIMINATING MATERI AL AND THEREFORE, THE AO HAS NO JURISDICTION TO MAKE ADDITION IN THE UNABATE D ASSESSMENT. THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE DECISION OF HON BLE BOMBAY HIGH COURT DECISION IN THE CASE OF CONTINENTAL WAREHOUSI NG CORPORATION (NHAVA SHEVA) LTD. (SUPRA), WHEREIN THE HON BLE BOMBAY HIGH COURT HELD AS UNDER: - A) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION O F 3,91,55,000/- UNDER SECTION 68 OF THE ACT IN RESPECT OF SHARE APPLICATI ON MONEY AND ADDITION OF 11,24,964/- UNDER SECTION 14A MADE BY THE ASSESSING OFFICER, AS IT WAS NOT BASED ON INCRIMINATING MATERIAL FOUND DURING THE CO URSE OF SEARCH. D) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF 3,91,55,000/- UNDER SECTION 68 OF THE ACT IN RESPECT OF SHARE APPLICATION MONEY AND ADDITION OF 11,24,964/- UNDER SECTION 14A MADE BY THE ASSESSING OFFICER WITHOUT APPRECIATING THE FACT THAT THE DECISION OF CONTINEN TAL WAREHOUSING CORPORATION & THE DECISION IN THE CASE OF ALL CARGO GLOBAL LOGISTICS HAVE NOT BEEN ACCEPTED BY THE DEPARTMENT AND AN SLP HAS BEEN FILED IN THE SUPREME COURT IN BOTH THE CASES DECIDED BY THE HIGH COURT I.E. CONTINENTAL WAREHOUSING CORPORATION AS WELL AS ALL CARGO GLOBAL LOGISTICS VIDE APPEAL CIVIL 8546 OF 2015 AND SLP CIVIL 5254-5265 OF 2016 RESPECTIVELY. 45. SINCE, THERE IS NO INCRIMINATING MATERIAL FOUND DURING THE COURSE OF SEARCH, WE THEREFORE RESPECTFULLY FOLLOWING THE RATIO LAID DOW N BY THE HON BLE BOMBAY HIGH COURT IN THE ABOVE DECISION, SET ASIDE THE ORD ER OF THE CIT(A) AND DIRECT THE AO TO DELETE THE ADDITION. RESULTANTLY, THE APPEAL OF THE ASSESSEE ON JURISDICTIONAL ISSUE IS ALLOWED. 47. AS REGARDS THE ISSUE OF SEIZED MATERIAL IT IS C LEAR THAT IN THE APPEALS WHICH HAVE REMAINED UNABATED THE ADDITION IS WITHOUT REFERENCE TO ANY SEIZED MATERIAL. THE MATERIALS REFERRED ARE ONLY THE STATEMENT OBTAINED OF THE ASSESSEE UNDER SECTION 132 (4). THESE HAVE BEEN DULY RETRACTED. HENCE WITHOUT CORROBORATIVE MATERIAL ADDITION ONLY BASED UPON THE RETRACTED STATEMENT IS NOT SUST AINABLE. FOR THIS PROPOSITION FOLLOWING CASE LAWS ARE GERMANE: CIT VS. SUNIL AGARWAL (379 ITR 367) CIT VS. NARESH KUMAR AGARWAL (369 ITR 171) DCIT VS. NARENDRA GARG & ASHOK GARG (AOP) (ITA NO . 1531 & 1532 OF 2007 DATED 28.7.2016) ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 15 DCIT VS. MARATHON FISCAL PVT. LTD. (ITA NO. 5783 & 5784/MUM/2017 DATED 28.8.2019) TRIBHUVANDAS BHIMJI ZAVERI (ITA 2250 & 2251/MUM/2 013 DT. 4.11.2015) 48. IT MAY ALSO BE PERTINENT TO NOTE HERE THAT NO S EIZED MATERIAL SAID TO BE INCRIMINATING WAS PRODUCED BEFORE US. IN LIGHT OF A BOVE SAID CASE LAWS THE OBSERVATION OF LEARNED CIT(A) THAT INCRIMINATING MA TERIAL NEED NOT BE SPECIFIC HAS NO LEGS TO STAND. THIS VERY OBSERVATIO N BY THE LEARNED CIT(A) ITSELF IS AN ADMISSION THAT NO SPECIFIC INCRIMINATI NG MATERIAL HAS BEEN SEIZED AND REFERRED IN THE ASSESSMENT ORDER HENCE, IN ALL CASES OF UNABATED ASSESSMENT THE ASSESSMENT FAILS ON JURISDICTIONAL D EFECT. THUS, ITA NO. 6519/MUM/2019, 6520/MUM/2019, 6515/MUM/2019, 6516/M UM/2019, 6513/MUM/2019 & 6514/MUM/2019 ARE DISMISSED ON ACCO UNT OF JURISDICTIONAL DEFECT. IT COULD BE NOTED THAT IN THE ABOVE MATTER ALSO, EX CEPT FOR STATEMENT U/S 132(4), THERE WAS NO INCRIMINATING MATERIAL. THE STATEMENT WAS RE TRACTED BY THE ASSESSEE. THEREFORE, THE BENCH HELD THAT ADDITION ON THE BASI S OF RETRACTED STATEMENT, WITHOUT THERE BEING CORROBORATIVE MATERIAL WOULD NOT BE SUS TAINABLE AS HELD IN VARIOUS DECISIONS. SIMILAR ARE THE FACTS BEFORE US. THEREFO RE, APPLYING THE RATIO OF AFORESAID DECISIONS, SINCE THE ADDITIONS ARE NOT WITH REFEREN CE TO ANY INCRIMINATING MATERIAL, THE SAME WOULD NOT BE SUSTAINABLE IN THE EYES OF LA W. THE LD. CIT-DR HAS REFERRED TO THE DECISION OF HON' BLE DELHI HIGH COURT IN THE CASE OF SMT. DAYAWANTI V. CIT [2017] 390 ITR 496 TO COUNTER ASSESSEE S SUBMISSIONS. UPON PERUSAL OF THE SAME, WE FIND THAT THIS CASE LA W IS FACTUALLY DISTINGUISHABLE SINCE IN THAT CASE INCRIMINATING MATERIAL WAS FOUND BY TH E DEPARTMENT ALONG WITH CONFESSIONAL STATEMENTS. THE CASE LAW OF MUMBAI TRIBUNAL IN HIRALAL MAGANLAL & CO. V/S DCIT 96 ITD 113, AS CITED BY LD.CIT-DR DEALS WITH AN ASSESSMENT FRAM ED U/S 158BC WHICH IS NOT THE CASE HERE. IN THE CASE LAW OF HONBLE KERALA HIGH COURT IN CIT V/S O.ABDUL RAZAK (350 ITR 71), THERE WAS CLEAR ADMISSION BY THE ASSESSEE WHICH WAS DULY SUPPORTED BY THE DOCUMENTS. THE HONBLE HIGH COURT HELD THAT IN VIEW OF CLEAR ADMISSION OF THE ASSESSEE CORROBORATED BY THE DOCUMENTS, THE BURDEN ON THE DEPARTMENT CEASES TO EXIST. ON THE RETRACTION BEING FILED BY THE ASSESSE E, THERE IS A BURDEN CAST ON THE ASSESSEE TO PROVE THE DETRACTION OR RATHER DISPROVE THE ADMISSIONS MADE. IT IS NOT A SHIFTING OF THE ONUS BUT A NEW BURDEN CAST ON THE A SSESSEE TO DISPROVE THE EARLIER ADMISSIONS HAVING EVIDENTIARY VALUE. AS NOTICED EAR LIER, RETRACTION MADE BY THE ASSESSEE CAN ONLY BE CONSIDERED AS A SELF SERVING A FTERTHOUGHT AND NO RELIANCE CAN BE PLACED ON THE SAME TO DISBELIEVE THE CLEAR ADMISSIO NS MADE IN THE STATEMENT RECORDED UNDER SECTION 132(4). THEREFORE, THIS CASE LAW IS F ACTUALLY DISTINGUISHABLE SINCE FIRSTLY THERE IS NO CONFESSIONAL STATEMENT BY THE A SSESSEE AND SECONDLY, THE CONFESSION IS NOT BACKED BY ANY INCRIMINATING MATERIAL. ANOTHER CASE LAW AS REFERRED TO BY LD. CIT-DR IS OF HONBLE RAJASTHAN HIGH COURT IN BANNALAL JAT CONSTRUCTIONS P. LTD. V/S ACIT (106 TA XMANN.COM 127). ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 16 HOWEVER, THE SAME IS ALSO DISTINGUISHABLE ON FACT S INCE CONFESSIONAL STATEMENTS WERE BACKED UP BY SEIZURE OF CASH FROM ASSESSEES PREMIS ES. THE SAME IS NOT THE CASE HERE. SIMILAR IS THE POSITION WITH OTHER CASE LAWS CITED BY LD. CIT-DR WHICH ARE NOT SPECIFICALLY DEALT WITH KEEPING IN VIEW THE RATIO O F HONBLE JURISDICTIONAL HIGH COURT IN CIT V/S CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. 374 ITR 645. ON THE BASIS OF AFORESAID FACTS, WE ARE INCLINED TO HOLD THAT ADDITIONS MADE BY LD. AO WERE NOT VALID IN THE EYES OF LAW. 6.13 THE LAST ASPECT OF THE MATTER IS THAT THE ADDI TIONS HAVE BEEN MADE BY LD. AO INVOKING THE PROVISIONS OF SECTION 68. THE ADDITION U/S 68, IN OUR CONSIDERED OPINION, WAS NOT SUSTAINABLE IN VIEW OF THE FACT THAT CREDIT IN ASSESSEES BANK ACCOUNT REPRESENTS SALE PROCEEDS OF SHARES SOLD IN RECOGNIZ ED STOCK EXCHANGE THROUGH REGISTERED STOCK BROKER. THE SALE TRANSACTIONS HAVE TAKEN PLACE THROUGH RECOGNIZED STOCK EXCHANGE AND THE MONEY WAS RECEIVED IN SETTLE MENT THROUGH BANKING CHANNELS. THE ASSESSEE HAD DELIVERED THE SHARES FROM HIS DEMA T ACCOUNT TO THE BROKER, WHO, IN TURN, PAID SALE CONSIDERATION TO THE ASSESSEE. IN S UCH A CASE, THERE COULD BE NO DOUBT AS TO FULFILLMENT OF PRIMARY INGREDIENTS OF SEC.68 VIZ. IDENTITY OF THE PAYER, THEIR CREDITWORTHINESS AND THE GENUINENESS OF THE TRANSAC TIONS. THE SOURCE OF CREDIT RECEIVED IN THE BANK ACCOUNT COULD NOT BE HELD TO B E UNEXPLAINED UNLESS IT WAS ESTABLISHED THAT ASSESSEES OWN MONEY WAS ROUTED IN HIS BANK ACCOUNT IN THE GARB OF CAPITAL GAINS. 6.14 WE FIND THAT ON IDENTICAL SET OF FACTS, SIMILA R ADDITION MADE BY REVENUE WAS DELETED BY COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF DIPESH RAMESH VARDHAN & ORS. V/S DCIT (ITA NOS.7648/MUM/2019 & ORS. DATED 11/08/2020; AUTHORED BY ONE OF US) BY OBSERVING AS UNDER:- 6. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AN D PERUSED RELEVANT MATERIAL ON RECORD. SO FAR AS THE FACTUAL MATRIX IS CONCERNED, THERE IS NO SUBSTANTIAL DISPUTE REGARDING THE SAME. THE PERUSAL OF RECORD WOULD REVEAL THAT THE ASSESSEE PURCHASED CERTAIN SHARES OF AN EN TITY NAMELY M/S STL AS EARLY AS SEPTEMBER, 2011. THE SHARES WERE CONVERTED INTO DEMAT FORM IN ASSESSEE S ACCOUNT DURING THE MONTH OF MARCH, 2012. THE TRAN SACTIONS TOOK PLACE THROUGH BANKING CHANNELS. THE INVESTMENTS WER E DULY REFLECTED BY THE ASSESSEE IN FINANCIAL STATEMENTS OF RESPECTIVE YEAR S. THE COPIES OF FINANCIAL STATEMENTS OF M/S STL FOR FYS 2009-10 & 2010-11 WHI CH LED TO INVESTMENT BY THE ASSESSEE IN THAT ENTITY WAS ALSO FURNISHED D URING THE COURSE OF ASSESSMENT PROCEEDINGS. SUBSEQUENTLY, M/S STL GOT M ERGED WITH ANOTHER ENTITY VIZ. M/S SAL PURSUANT TO SCHEME OF AMALGAMAT ION U/S 391 TO 394 OF THE COMPANIES ACT, 1956. THE SCHEME WAS DULY APPROV ED BY HON BLE BOMBAY HIGH COURT VIDE ORDER DATED 22/03/2013, A CO PY OF WHICH IS ON RECORD. CONSEQUENTLY, THE SHARES OF M/S STL HELD BY THE ASSESSEE GOT SWAPPED WITH THE SHARES OF M/S SAL AND NEW SHARES W ERE ALLOTTED TO THE ASSESSEE DURING JUNE, 2013 PURSUANT TO THE APPROVED SCHEME OF AMALGAMATION. M/S SAL IS STATED TO BE LISTED PUBLIC COMPANY GROUP A SHARES SIGNIFYING HIGH TRADES WITH HIGH LIQUIDITY. THE ASSESSEE HAS SOLD THESE ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 17 SHARES THROUGH ITS STOCK BROKER NAMELY M/S UNIQUE S TOCKBRO PRIVATE LIMITED IN ONLINE PLATFORM OF THE RECOGNISED STOCK EXCHANGE DURING THE MONTH OF MARCH, 2014. THE SELLING PRICE WAS IN THE RANGE OF RS.489/- TO RS.491/- PER SHARE. THE TRANSACTIONS TOOK PLACE THROUGH ONLINE M ECHANISM AFTER COMPLYING WITH ALL THE FORMALITIES AND PROCEDURE IN CLUDING PAYMENT OF STT. THE DELIVERY OF THE SHARES WAS THROUGH CLEARING MEC HANISM OF THE STOCK EXCHANGE AND SALE CONSIDERATION WAS RECEIVED THROUG H BANKING CHANNELS. THE TRANSACTIONS ARE DULY EVIDENCED BY CONTRACT NOT ES, DEMAT STATEMENTS, BANK STATEMENTS AND OTHER DOCUMENTARY EVIDENCES. TH E KEY PERSON OF ASSESSEE GROUP, IN HIS STATEMENT, MAINTAINED THE PO SITION THAT TRADING TRANSACTIONS WERE GENUINE TRANSACTIONS CARRIED OUT THROUGH STOCK EXCHANGE FOLLOWING ALL PROCESS AND LEGAL PROCEDURES. THE ASS ESSEE ALSO FILED TRADING VOLUME DATA AND PRICE RANGE OF THE SCRIP FOR A PERI OD OF MORE THAN 2 YEARS I.E. FROM JAN, 2013 TO JULY, 2015. THE SHARES REFLE CTED HEALTHY TRADING VOLUME AND THE PRICE RANGE REFLECTED THEREIN WAS IN THE RANGE OF RS.360/- TO RS.600/- PER SHARE. THE PRICE RANGE WAS STATED TO B E IN THE SAME RANGE FOR 15 MONTHS AFTER THE PERIOD OF SALE OF SHARES BY THE AS SESSEE, WHICH HAS NOT BEEN DISPUTED BY THE REVENUE. ON THE BASIS OF ALL THESE FACTS, IT COULD BE GATHERED THAT THE ASSESSEE HAD DULY DISCHARGED THE ONUS CAST ED UPON HIM TO PROVE THE GENUINENESS OF THE STATED TRANSACTIONS AND THE ONUS HAD SHIFTED ON REVENUE TO REBUT THE SAME. 7. AS AGAINST THE ASSESSEES POSITION, THE PRIMARY MATERIAL TO MAKE ADDITIONS IN THE HANDS OF ASSESSEE IS THE STATEMENT OF SHRI V IPUL BHAT AND THE OUTCOME OF SEARCH PROCEEDINGS ON HIS ASSOCIATED ENTITIES IN CLUDING M/S SAL. HOWEVER, THERE IS NOTHING ON RECORD TO ESTABLISH VI TAL LINK BETWEEN THE ASSESSEE GROUP AND SHRI VIPUL BHAT OR ANY OF HIS GR OUP ENTITIES. THE ASSESSEE, ALL ALONG, DENIED HAVING KNOWN SHRI VIPUL BHAT OR ANY OF HIS GROUP ENTITIES. HOWEVER, NOTHING HAS BEEN BROUGHT ON RECO RD TO CONTROVERT THE SAME AND ESTABLISH THE LINK BETWEEN SHRI VIPUL BHAT AND THE ASSESSEE. THE OPPORTUNITY TO CROSS-EXAMINE SHRI VIPUL BHAT WAS NE VER PROVIDED TO THE ASSESSEE WHICH IS CONTRARY TO THE DECISION OF HONB LE SUPREME COURT IN M/S ANDAMAN TIMBER INDUSTRIES V/S CCE (CA NO.4228 OF 20 06) WHEREIN IT WAS HELD THAT NOT ALLOWING THE ASSESSEE TO CROSS-EXAMIN E THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENT OF THOS E WITNESSES WERE MADE THE BASIS OF THE IMPUGNED ORDER IS A SERIOUS FLAW W HICH MAKES THE ORDER NULLITY IN AS MUCH AS IT AMOUNTS TO VIOLATION OF PR INCIPAL OF NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTE D. THE WHOLE BASIS OF MAKING THE ADDITION IS THIRD PARTY STATEMENT WITHOU T THERE BEING ANY TANGIBLE MATERIAL. IT IS TRITE LAW THAT ADDITIONS MERELY ON THE BASIS OF SUSPICIOUS, CONJECTURES OR SURMISES COULD NOT BE SUSTAINED IN T HE EYES OF LAW AS HELD BY HONBLE SUPREME COURT IN OMAR SALAY MOHAMED SAIT V/S CIT (1959 37 ITR 151). THE SUSPICION HOWEVER STRONG COULD NOT PARTAKE THE CHARACTER OF LEGAL EVIDENCE AS HELD BY HONBLE SUPREME COURT IN UMACHARAN SHAW & BROS. V/S CIT (1959 37 ITR 271) . THEREFORE, WE FIND THAT ONUS AS CASTER UPON REVENUE TO CORROBORATE THE IMPUGNED ADDITIONS BY CONTROVERTING THE DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE AND BY BRINGING ON RECORD, ANY COGENT MATERIAL TO SUSTAIN THOSE ADDITIONS, COU LD NOT BE DISCHARGED BY ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 18 THE REVENUE. THE ALLEGATION OF PRICE RIGGING / MANI PULATION HAS BEEN LEVIED WITHOUT ESTABLISHING THE VITAL LINK BETWEEN THE ASS ESSEE AND VARIOUS ENTITIES OF SHRI VIPUL BHAT. WE FIND THAT THE WHOLE BASIS OF MAKING ADDITIONS IS THIRD PARTY STATEMENT AND NO OPPORTUNITY OF CROSS-EXAMINA TION HAS BEEN PROVIDED TO THE ASSESSEE TO CONFRONT THE SAID PARTY. AS AGAI NST THIS, THE ASSESSEES POSITION THAT THAT THE TRANSACTIONS WERE GENUINE AN D DULY SUPPORTED BY VARIOUS DOCUMENTARY EVIDENCES, COULD NOT BE DISTURB ED BY THE REVENUE. 8. THE ALLEGATIONS OF LD.AO THAT THE ASSESSEE WAS P ART OF THE GROUP WHICH INDULGED IN RIGGING OR MANIPULATION OF PRICES OF SH ARES IN CONNIVANCE WITH SHRI VIPUL BHAT IS NOT BACKED BY ANY INDEPENDENT MA TERIAL. FIRSTLY, THERE IS NOTHING ON RECORD WHICH ESTABLISHES THE FACT THAT T HE ASSESSEE WAS ACQUAINTED WITH SHRI VIPUL BHAT OR ANY OF HIS ENTIT IES AND SECONDLY, THE ONUS CASTED UPON ASSESSEE TO PROVE THE GENUINENESS OF TH E TRANSACTIONS WAS ALREADY DISCHARGED BY THE ASSESSEE. SHRI VIPUL BHAT , IN HIS STATEMENT, STATED THAT ONE SHRI SANDEEP MAROO ACTED AS INTERMEDIARY W HO INTRODUCED VARDHAN FAMILY TO HIM. HOWEVER, NO FURTHER INVESTIGATIONS H AVE BEEN CARRIED OUT TO ESTABLISH THIS VITAL LINK BETWEEN THE ASSESSEE AND SHRI VIPUL BHAT. WE DO NOT FIND ANY INDEPENDENT INVESTIGATIONS BY LD. AO TO BR ING ON RECORD ANY TANGIBLE MATERIAL TO CORROBORATE THE SAME. THERE AR E NO EVIDENT OR EVEN ALLEGATION OF ANY CASH EXCHANGE BETWEEN THE ASSESSE E AND GROUP ENTITIES OF SHRI VIPUL BHAT. THIS IS FURTHER EVIDENCED BY THE F ACT THAT NO SUBSTANTIAL INCRIMINATING MATERIAL / WEALTH OF THAT MAGNITUDE H AS BEEN FOUND DURING THE COURSE OF SEARCH OPERATIONS ON ASSESSEE WHICH WOULD CORROBORATE SUCH PRESUMPTION AND PROVE THAT THE TRANSACTIONS WERE SH AM TRANSACTIONS, IN ANY MANNER. 9. THE FACT THAT THE ASSESSEE COULD NOT PRODUCE THE CONCERNED PERSON OF M/S SAL WAS RIGHTLY CONTROVERTED BY SUBMITTING THAT THE AFORESAID ENTITY WAS NOT UNDER THE CONTROL OF THE ASSESSEE AND THE ASSESSEE WAS UNDER NO OBLIGATION TO DO SO. THE EXISTENCE OF M/S SAL IS BEYOND DOUBT SIN CE IT WAS A LISTED CORPORATE ENTITY AND SECONDLY, IT WAS SUBJECT MATTE R OF SCHEME OF AMALGAMATION U/S 391 TO 394. THE SCHEME OF AMALGAMA TION WAS DULY BEEN APPROVED BY HONBLE BOMBAY HIGH COURT. THEREFORE, T HE EXISTENCE OF THE SAID ENTITY COULD NOT BE DOUBTED, IN ANY MANNER. 10. THE ABOVE CONCLUSION IS FURTHER FORTIFIED BY TH E FACT THAT IN SHARE SALE TRANSACTIONS THROUGH ONLINE MODE, THE IDENTITY OF T HE BUYER OF THE SHARES WOULD NOT BE KNOWN TO THE ASSESSEE. THEREFORE, THE ADVERSE CONCLUSION DRAWN BY LD. AO MERELY ON THE BASIS OF THE FACT THA T THE BUYER OF THE SHARES WERE GROUP ENTITIES OF SHRI VIPUL BHAT, COULD NOT B E SUSTAINED. THE FACT THAT THERE WERE INDEPENDENT BUYERS ALSO WOULD REBUT THE SAME AND WEAKEN THE CONCLUSION DRAWN BY LD. AO. 11. THE LD. AR HAS RELIED ON PLETHORA OF JUDICIAL P RONOUNCEMENTS IN SUPPORT OF VARIOUS SUBMISSIONS, WHICH WE HAVE DULY CONSIDER ED. THESE DECISIONS WOULD ONLY SUPPORT THE CONCLUSIONS DRAWN BY US THAT ONCE THE ASSESSEE HAS DISCHARGED THE ONUS OF PROVING THE GENUINENESS OF T HE TRANSACTIONS, THE ONUS ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 19 WOULD SHIFT ON THE REVENUE TO DISLODGE ASSESSEES C LAIM AND BRING ON RECORD CONTRARY EVIDENCES TO REBUT THE SAME. UNTIL AND UNL ESS THIS EXERCISE IS CARRIED OUT, THE ADDITIONS COULD NOT BE SUSTAINED I N THE EYES OF LAW. 12. TO ENUMERATE THE FEW, THE HONBLE BOMBAY HIGH C OURT IN CIT V/S SHYAM S.PAWAR (54 TAXMANN.COM 108 10/12/2014) DECLINED TO ADMIT REVENUE S APPEAL SINCE THE REVENUE FAILED TO CARRY FORWARD THE INQUIRY TO DISCHARGE THIS BASIC ONUS. THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN MUKESH R.MAROLIA V/S ADDL. CIT (6 SOT 247 15/12/2005) HELD THAT PERSONAL KNOWLEDGE AND EXCITEMENT ON EVENTS SHOULD NOT LEAD THE ASSESSING OFFICER TO A STATE OF AFFAIRS WHERE SALIENT EVIDENCES ARE OVER -LOOKED. WHEN EVERY TRANSACTION HAS BEEN ACCOUNTED, DOCUMENTED AND SUPP ORTED, IT WOULD BE VERY DIFFICULT TO BRUSH ASIDE THE CONTENTIONS OF THE ASS ESSEE THAT HE HAD PURCHASED SHARES AND HAD SOLD SHARES AND ULTIMATELY PURCHASED A FLAT UTILIZING THE SALE PROCEEDS OF THOSE SHARES AND THEREFORE, THE CO-ORDI NATE BENCH CHOSE TO DELETE THE IMPUGNED ADDITIONS. WE FIND THAT THIS DECISION WAS FIRSTLY BEEN APPROVED BY HONBLE BOMBAY HIGH COURT VIDE ITA NO. 456 OF 20 07 ON 07/09/2011 AND THEREAFTER, SPECIAL LEAVE PETITION AGAINST THE SAID DECISION HAS BEEN DISMISSED BY HONBLE SUPREME COURT VIDE SLP NO. 20146 OF 2012 DATED 27/01/2014 WHICH IS REPORTED AS 88 CCH 0027 SCC. THE SMC BENCH OF TRIBUNAL IN ANRAJ HIRALAL SHAH (HUF) V/S ITO (ITA NO. 4514/MUM/ 2018 DATED 16/07/2019) HELD THAT IN THE ABSENCE OF ANY EVIDENCE TO IMPLICA TE THE ASSESSEE OR TO PROVE THAT THE TRANSACTIONS WERE BOG US, THE LONG-TERM CAPITAL GAINS DECLARED BY THE ASSESSEE COULD NOT BE DOUBTED WITH. THIS CASE WAS DEALING WITH GAINS EARNED BY THE ASSESSEE ON SA LE OF SAME SCRIP I.E. M/S SUNRISE ASIAN LTD. 13. THEREFORE, CONSIDERING THE E NTIRETY OF FACTS AND CIRCUMSTANCES, WE ARE NOT INCLINED TO ACCEPT THE ST AND OF LD.CIT(A) IN SUSTAINING THE IMPUGNED ADDITIONS IN THE HANDS OF T HE ASSESSEE. RESULTANTLY, THE ADDITION ON ACCOUNT OF ALLEGED LONG-TERM CAPITA L GAINS AS WELL AS ESTIMATED COMMISSION AGAINST THE SAME, STANDS DELET ED. THE GROUNDS OF APPEAL, TO THAT EXTENT, STAND ALLOWED. SIMILAR IS THE DECISION OF HON BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT V/S POOJA AGARWAL (ITA NO. 385/2011 DATED 11/09/2017) AND THE DECISION OF HON BLE DELHI HIGH COURT IN PR.CIT V/S SMT. KRISHNA DEVI & ORS. (ITA NOS. 125/2 020 & ORS. DATED 15/01/2021). WE FIND THAT THE RATIO OF AFORESAID DECISIONS IS EQ UALLY APPLICABLE TO THE FACT OF THE PRESENT CASE BEFORE US. CONCLUSION 6.15 FINALLY, KEEPING IN THE FACTS AND CIRCUMSTANCE S OF THE CASE, WE ARE INCLINED TO HOLD THAT IMPUGNED ADDITIONS ARE NOT SUSTAINABLE IN THE EYES OF LAW. THE ASSESSEE HAD DISCHARGED THE PRIMARY ONUS OF ESTABLISHING THE GEN UINENESS OF THE TRANSACTIONS WHEREAS THE ONUS AS CASTED UPON REVENUE TO CORROBOR ATE THE IMPUGNED ADDITIONS BY CONTROVERTING THE DOCUMENTARY EVIDENCES FURNISHED B Y THE ASSESSEE AND BY BRINGING ON RECORD, ANY COGENT MATERIAL TO SUSTAIN THOSE ADD ITIONS, COULD NOT BE DISCHARGED BY THE REVENUE. THE WHOLE BASIS OF MAKING ADDITIONS IS THIRD-PARTY STATEMENT AND NO OPPORTUNITY OF CROSS-EXAMINATION HAS BEEN PROVIDED TO THE ASSESSEE TO CONFRONT THESE PARTIES. AS AGAINST THIS, THE ASSESSEES POSITION T HAT THAT THE TRANSACTIONS WERE ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 20 GENUINE AND DULY SUPPORTED BY VARIOUS DOCUMENTARY E VIDENCES, COULD NOT BE DISTURBED BY THE REVENUE. HENCE, GOING BY THE FACTU AL MATRIX AND RESPECTFULLY FOLLOWING THE BINDING JUDICIAL PRECEDENTS AS ENUMER ATED IN THE ORDER, THE ADDITIONS MADE BY LD. AO AND CONFIRMED BY LD. CIT(A), ARE NOT SUSTAINABLE IN THE EYES OF LAW. THEREFORE, WE ARE INCLINED TO DELETE THE SAME. 7. WE FIND THAT THE FACTS MENTIONED IN THE JUDGMENT S ABOVE REFERRED IS SIMILAR TO THAT OF THE FACTS NARRATED IN THE APPEAL BEFORE US AND, THUS, IN THE ABSENCE OF ANY CHANGED CIRCUMSTANCES RESPECTFULLY R ELYING UPON THE SAME WE ALLOW THE APPEAL PREFERRED BY THE ASSESSEE. 8. IN THE ABSENCE OF ANY CHANGED CIRCUMSTANCES AND/ OR FACTS WE DO NOT FIND ANY REASON TO DEVIATE FROM THE STAND TAKEN BY THE LD. MUMBAI BENCH AND RESPECTFULLY RELYING UPON THE SAME WE DELETE TH E ADDITION TO THE TUNE OF RS. 77,57,559/- IN RESPECT OF LONG TERM CAPITAL GAI N. HENCE, THE ASSESSEES APPEAL IS ALLOWED. ITA NOS. 200-202/IND/2019 (A.YS. 2011-12 & 2012-13 ):- 9. THE IDENTICAL ISSUE INVOLVED IN THESE CASES HAS ALREADY BEEN DEALT WITH BY US IN ITA NO.199/IND/2019 FOR A.Y. 2011-12 AND IN THE ABSENCE OF ANY CHANGED CIRCUMSTANCES THE SAME SHALL APPLY MUTA TIS MUTANDIS. HENCE, THE APPEALS PREFERRED BY THE ASSESSEE ARE ALLOWED. 10. IN THE COMBINED RESULT, THE APPEALS FILED BY TH E ASSESSEE ARE ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 22 /09 /2021 SD/- SD/- SD/- SD/- (MANISH BORAD) (MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 22 /09/2021 TANMAY, SR. PS TRUE COPY ITA NOS.199TO202/IND/2019 ASHISH CHHAPARIA(OTHERS) VS. ITO ASST.YEARS 2011-12 & 2012-13 - 21 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)- 5. , ! ', #$%% / DR, ITAT, INDORE 6. &' () / GUARD FILE. / BY ORDER, (DY./ASSTT.REGISTRAR) ITAT, INDORE