Smt. Meera Alpesh Kanugo, Vadodara V. ITO, Ward-3(1)(3), Vadodara

ITA 2130/AHD/2018

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 7941 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 14-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S.S. SHUKLA
• Keywords: Unexplained cash credit; Accommodation entries; Set aside; Capital Gains
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “A” BENCH (Conducted Through Virtual Court) Before: Shri Waseem Ahmed, Accountant Member And Ms. Madhumita Roy, Judicial Member S mt. MeeraAlp eshKanugo , 26, Jawahar Society, Nr. Bakrawadi, R. V. Desai Ro ad, Vadodara PAN: AR VP K468 9F (Appellant) Vs The ITO, Ward -3 (1 )(3), Vad odara (Respond ent) Asses see by : Shri K. P. Singh, A. R. Revenue by : Shri S. S. S hukla, Sr. D. R. Date of hearing : 04-01 -2 022 Date of pron ouncement : 25-02 -2 022 आदेश/ORDER PER :WASEEM AHMED, ACCOUNTANT MEMBER:- The captioned appeal has been filed at the instance of the assessee against the appeal order of the Ld. CIT(A)-3 relevant to Assessment Year 2014-15 2. The assessee has raised following grounds of appeal:- “1. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in confirming the action of the Assessing Officer of making an addition, being disallowance of claim of exempted long term capital gain on sale of shares of Ms. Shree Shaleen ITA No. 2130/Ahd/2018 Assessment Year 2014-15 I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 2 Textiles Ltd. (SHRSH TEX) and treating it as unexplained credits u/s. 68 of the Act. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in sustaining the addition of Rs. 62,13,9457- on account of disallowance of the claim of exempted long term capital gain on sale of shares of M/s. Shree Shaleen Textiles Ltd. (SHRSHTA TEX) and treating it as unexplained credits u/s. 68 of the Act. 2. It is therefore prayed that the above addition made by assessing Officer and confirmed by learned Commissioner of Income-tax (Appeals) may please be deleted.” 3. The relevant facts, in short, are that the assessee filed her return of income for the year under consideration on 22-04-2015 declaring a taxable income of Rs.10,32,510/- only. In the return of income, the assessee claimed exemption from long term capital gain (LTCG) of Rs.62,13,945/- u/s 10(38) of the Income Tax Act. The assessee has purchased the shares of Shree Shaleen Textile Ltd. (Shrshta Tex) on 16.09.2011 at Rs.10 per share for a total consideration of Rs.52,760/- only. Thereafter, the assessee was allotted 19000 bonus shares which were later converted into 1 lakh shares under sub- division of shares of face value of 10 per share. The shares were purchased off line but they were transferred in the name of assessee by the company on 31-03-2012. The shares were then dematerlized with Jhaveri Securities Ltd. which was processed in the month of April, 2012 and finally dematerlized in May, 2012. The shares were sub-divided into one lakh shares on 3 rd August, 2013 and were sold on various dates by the assesseebetween 09-04-2013 to 25-09-2013 for a total consideration of Rs.62,66,705/- as per the below table:- I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 3 Sr. No. Particulars Sale date Sale considerati on Purchase date Purchas e Cost Index Cost Exp Gain/loss 1. Shree Shaleen Textiles Ltd. 09.04.2013 16578 16.09.2011 211 0 0 2 Do 10.04.2013 76165 16.09.2011 923 0 0 3 Do 11.04.2013 34236 16.09.2011 396 0 4 Do 18.07.2013 3141551 16.09.2011 26380 0 5 Do 05.08.2013 1097231 16.09.2011 9117 0 6 Do 25.09.2013 1900944 16.09.2011 15733 62,66,705 52,760 0 62,13,945 4. The Assessing Officer during the course of assessment proceedings disallowed the claim of exemption of long term capital gains on sale of shares of M/s. Shri Shaleen Textile Ltd. and treated the same as unexplained credit u/s 68 of the Act on the following grounds:- (i) From the modus operandi operated by the assessee it is seen that purchase transaction has been done on market in physical form by paying cheque, which is not supported by any genuine contract note. This has been carried in a planned manner to capitalize the black money taking exemption as long term capital gain. (ii) The transaction of purchase of shares in physical form and thereafter converting the same into electronic mode is not in conformity with the SEBI guidelines. I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 4 (iii) The assessee is not a regular investor in shares and it is surprising that the assessee has managed to earn a phenomenal return of 78 to 180 times within a short period. The assessee has entered into a sham transaction to convert unaccounted money into accounted money. (iv) The shares have been identified as penny shares by investigation wing of the department because rates on these shares are not based on business results of the company but the same is fluctuated by insider trading. (v) Statements of brokers, operators, director of paper companies that has bought these shares, directors of Penny stock companies all confess to such a scheme with detailed modus operandi which tallies with actual transactions. The assessee is one such beneficiary who has taken entry of LTCG. vi) Exactly similar entries have been taken by other family members of the assessee in the form of Exempted Long Term Capital Gain and the total bogus LTCG so claimed by assessee, and his family members comes to Rs.1,55,93,391/- from actual investment of Rs.1,32,401/-. A quick analysis of the above figure shows abnormal return from a very small investment within a span of one to two years, which is quite impossible in normal share trading. 5. While passing the order, the Ld. Assessing Officer observed certain facts as detailed under:- “7. As per information available with the office, it is learnt that surveys and search actions were carried out at Kolkata, Mumbai and Delhi on entry operators I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 5 who were involved in providing accommodation entry in form of bogus LTCG through sale of penny stock. It is seen that the entry operators in their sworn in statement has discussed the modus operandi as how bogus LTCG is being provided through penny scripts. The modus operandi discussed by the entry operator is produced hereunder for better understanding of the case as well as to make nexus with the case: "In this scheme, the shares of the penny stock companies are acquired by the beneficiaries of LTCG at very low prices generally through the route of preferential allotment (private placement) or off market transaction. These shares have a lock-in period of 1 year as per Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009. Another route to acquire the shares is through Amalgamation or merger. In this route, the beneficiaries of LTCG are allotted shares of a private limited company which is subsequently amalgamated with a listed penny stock and the beneficiaries receive shares of the listed penny stock in exchange of the shares of private limited company. Thereafter, the prices of the shares of the penny stock companies are rigged and are raised through circular trading. This is managed by the "operator" of the scrip. An "Operator" is a person who is managing the overall affairs of the scheme and he is the one who contacts the entities who wish to take entry of bogus LTCG/STCL in their books and arranges the same through the scripts of penny stock companies. The Operator manages many paper/bogus companies and uses them to do circular transactions to rig the price of the shares. The shares of these penny stock companies, although listed on exchange, are always closely held and are controlled by the promoter of the Penny Stock Company and the Operator who is arranging for the bogus LTCG/Loss. This is due for the fact that the general public is not interested in these shares as these companies have no credentials and this helps the operator to keep a control on the price movement of the shares. 8. On the basis of statements recorded and findings of the investigation huge amount of beneficiaries were detected and reported for the Assessment wing.In continuation of the above, search and survey operation were carried by the Investigation Wing of Kolkata and New Delhi at about 32 share broking entities and more than 20 Entry operators. Out of the Investigation of such high magnitude, the investigation wing have unearthed and identified some 84 odd companies which are listed on Bombay Stock Exchange and are being used for providing bogus accommodation entry of Long Term Capital Gain/Short Term Capital Loss. List of such company identified by the Department includes the following scrip in which you have traded and shown Long Term Capital Gain as per the details below:- I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 6 Script Code Script Name Full name of penny stock Amount of total trade value SEBI Action 50551 3 SHRSHA TEX Shree Shaleen Textiles Ltd 502. 16CRORE Suspended In view of the above, the AO treated the long term capital gain declared by the assessee as unexplained cash credit under section 68 of the Act. 6. Aggrieved, the assessee preferred an appeal before Ld. CIT(A). Before Ld. CIT(A), it was submitted that the Assessing Officer borrowed his satisfaction from the Investigation Wing of the department and has reached the conclusion that trading of the script of M/s. Shaleen Textile Pvt. Ltd. was bogus. The assessee relied on ITAT decision in the case of Dwani Mahendra Shah, Smt. Sunita Jain, ACIT vs. Bhavik Bharatbhai Padia, Pratik Suryakant Shah, Meena Dev etc. The assessee also placed reliance on the decision of ITAT in the case of Smt. Durga Devi Gupta Vs. ITO and Shri Mahesh Mundra vs. ITO. It was further submitted that appellant had furnished copy of contract note for purchase and sale of shares which is in the file of department ignoring the evidence and relying only on the report of the Investigation Wing, the Assessing Officer has reached to the untenable conclusion only based on suspicion and surmises. 7. The Ld. CIT(A) disregarded the contention of the assessee and upheld the disallowance made by the Assessing Officer. The Ld. CIT(A) while sustaining the disallowance made the following observation:- I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 7 3.3.2 The shares of Shrsha Tex (Shree Shaieen Textiles Ltd.) were having market price of share at around Rs.52.60 per share on 16.09.2011 and the price was hiked to more than 78 to 118 times (approx.) within span of one year. After that the price was fell tremendously and purchase price of shares declared by the assessee were not in conformity with the rates prevailing on the respective dates, and the lowest and highest price quoted does not match with the purchase price shown by the assessee. It is evident that when at the time of booking of LTCG the share price tremendously on a higher side and thereby bogus gains were booked those who have huge profit can avail LTCG to set off their profit. The entire process was managed by operator who works for commission, the beneficiary who wants loss, buys the share at a high rate form the beneficiary who is taking LTCG. The loss taking beneficiary pays cheque to the LTCG taking beneficiary and the cash provided by the LTCG beneficiary is returned to the loss taking beneficiary. Statements of Shri Akash Agarwal, Director of M/s AdarshTelemedia Pvt. Ltd. who is the key person were recorded on oath before the Investigation Wing, Kolkatta. Vide Answer to Q.No.4, he has admitted that "I am one of the Director of the said company. The other director is my brother Shri Amit Agarwal. Except it, I used to provide accommodation entry in the form of bogus sale of shares, bogus long term capital gain/loss, bogus billing, bogus sale of share to different beneficiaries through many paper companies which are managed & controlled by me". Shrsha Tex (Shree Shaleen Textiles), the trading activities of the said script were very less during the period prior to FY.2013-14 and it was negligible trading were carried out during the period prior to 2012, wherein no buyers in the market for the said script. There was no extraordinary event which could justify the huge price rise and huge trading volume. The SEBI after thorough investigation has certified that such transactions are rigged and are carried out to convert black money into white. That being so, the credit in the bank account of the assessee cannot be treated as explained and, therefore, liable to be added u/s 68 of the Act. The onus was, therefore, on the assessee to prove that either there was no such scheme and even if there was one, the benefit to the assessee was as a result of genuine transaction. Thus, the assessee miserably failed to discharge this onus with any supporting documentary evidence and it is clearly proved that it was an entry of bogus long term capital gain by paying unaccounted Income. 3.3.14 The assessee has not at all been able to adduce cogent evidences in this regard. There is no economic or financial justification for the sale price of these shares.The so called purchaser of these shares has not been identified despite efforts of the AO. The broker company through which shares were sold did not respond to queries in this regard. Hence the fantastic sale price realization is not at all humanly probably, asthere is no economic or financial basis that a share of little known company would jump abnormally. In these circumstances, I do not find any infirmity in the order of the A.O.Accordingly I affirm the same and decide the issue against the assessee, respectfully following the above decisions. Considering the facts of the case, I have no hesitation inholding that the I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 8 transactions in purchase and sale of shares of Shrsha Tex (Shree" Shaleen Textiles) for Rs.62,66,705/- were sham transactions intended to claim wrong exemption u/s 10(38) of the Income Tax Act and, therefore, I uphold the addition of Rs.62,13,945/- made by the Assessing Officer. This ground of appeal (on merits) is also dismissed.” 8. Being aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before us. 9. The Ld. Authorized Representative before us submitted as under:- (i) In the course of assessment proceedings, the assessee filed various documents of purchase and sale which prove that the purchase and sale was done in a legal manner.The Assessing Officer had proceeded only on the basis of the report of the Investigation Wing and the alleged statements of the Director of Adarsh Tele Pvt. Ltd. and the alleged operators have not told in the statements that the assessee was also a beneficiary. (ii) The assessee was not allowed cross examination of said alleged bogus operators. The assessee relied on the case of Dhwani Mahendra Shah and others (1008-09/922/Ahd/2015) wherein it was held that no adverse decision can be taken against the assessee without giving the opportunity of cross examination. In this decision, it was held that claim of the appellant cannot be denied on the basis of presumption and surmises in respect of penny stock by disregarding the direct evidence on record relating to sale/purchase transaction supported by brokers contract note. I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 9 (iii) The Assessing Officer has not found any fault in the documents relating to purchase and sale of shares including contract notes etc. The payments were received through account payee cheque and the transaction was done through recognized stock exchange. The inflow of shares is reflected by way of physical share certificate and demat account. There is no evidence that cash was re-cycled and the assessee has no nexus with a company, its Directors or Operators engaged in price rigging. The assessee invested in stocks which gave rise to huge capital gain but this does not mean that the transaction is bogus since all the documents and evidences have been produced. The shares were sold in piecemeal on different dates through recognized stock exchange at quoted price. (iv) The assessee submitted that decisions of Sumati Dayal vs. CIT 214 ITR 80TT (SC) is not applicable to the assessee as it has successfully demonstrated with the help of evidence on record to have made the transaction of purchase and sale of alleged shares no certain material was brought on record indicating name of any of the entry provider taking assessee’s name or share broker name. (v) Various decisions quoted by ld. CIT(A) are not applicable in the appellant’s case since the appellant has proved that the purchase/sale is genuine and the department did not provide any opportunity of cross examination but only proceeded on the statement of Akash Agrawal and other operators to prove the case of the department. I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 10 (vi) The assessee has proved that the purchase and sale are genuine and, therefore, in view of the Hon’ble Gujarat High Court decision in the case of CIT vs. Mahesh Chandra G. Vakil (2013) 40 taxmann.com 326 (Guj) capital gain on sale of shares should not be taxed u/s 68 of the I.T. Act. Reliance was also placed on the latest decision of Nishant Kantilal Patel(2013-14/5/SRT/2019) vide order dated 07.01.2021 of Surat Bench of ITAT on the same facts. It was requested that based on facts of the case, appeal may kindly be allowed. The assessee submitted that the Assessing Officer has not been able to prove the existence of modus operandi as discussed by him in the assessment order. Since the Assessing Officer has not been able to prove that the cash was actually deposited in those accounts before the issue of the cheque for the sale price it cannot be said with this assessee has followed the modus operandi discussed as by the Assessing Officer or CIT(A). Moreover, the Assessing Officer or CIT(A) have not allowed the opportunity of cross examination of Akash Agrawal or Sawan Kumar Jaju. Therefore, this statement cannot be relied upon. 10. On the other hand, the Ld. Departmental Representative argued that the burden of proof is on the person claiming the exemption. The Ld. Departmental Representative submitted that during the course of assessment as well as during the course of first appellate proceedings, the assessee was given adequate opportunity to discharge the burden but she failed to do so. The Ld. Departmental Representative placed reliance on Para 15 of page 16 of the Assessment Order and Para 19 at page 19 of the Assessment Order to I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 11 demonstrate that the assessee has not adequately discharged the responsibility cast upon him. The Ld. DR vehemently supported the order of the authorities below. 11. We have heard the rival contentions and perused the materials available on record. In the instant case, the assessee has declared long term capital gain of Rs.62,13,945/- which was treated by the ld. AO as bogus long term capital gain. The view taken by the ld. AO was subsequently confirmed by the Ld. CIT(A). 12. In a recent case of PCIT vs. Smt. Krishna Devi, ITA No.125/2020, the Delhi High Court vide order dated January 27, 2021 held that the fact that there was an astounding 4849.2% jump in the share price within two years, which is not supported by the financials, does not justify the AO's conclusion that the assessee converted unaccounted money into fictitious exempt LTCG to evade taxes. The finding is unsupported by material on record & is purely an assumption based on conjecture. The theory of human behavior and preponderance of probabilities, based on Sumati Dayal v. CIT, 214 ITR 801 (SC), cannot be cited as a basis to turn a blind eye to the evidence. The relevant extract of the judgment is reproduced for ready reference: 12. Mr. Hossain’s submissions relating to the startling spike in the share price and other factors may be enough to show circumstances that might create suspicion; however the Court has to decide an issue on the basis of evidence and proof, and not on suspicion alone. The theory of human behavior and preponderance of probabilities cannot be cited as a basis to turn a blind eye to the evidence produced by the Respondent. With regard to the claim that observations made by the CIT(A) were in conflict with the Impugned Order, we may only note that the said observations are general in nature and later in the order, the CIT(A) itself notes that the broker did not respond to the notices. Be that as it may, the CIT(A) has only approved the order of the AO, following the I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 12 same reasoning, and relying upon the report of the Investigation Wing. Lastly, reliance placed by the Revenue on Suman Poddar v. ITO (supra) and Sumati Dayal v. CIT (supra) is of no assistance. Upon examining the judgment of Suman Poddar (supra) at length, we find that the decision therein was arrived at in light of the peculiar facts and circumstances demonstrated before the ITAT and the Court, such as, inter alia, lack of evidence produced by the Assessee therein to show actual sale of shares in that case. On such basis, the ITAT had returned the finding of fact against the Assessee, holding that the genuineness of share transaction was not established by him. However, this is quite different from the factual matrix at hand. Similarly, the case of Sumati Dayal v. CIT (supra) too turns on its own specific facts. The above-stated cases, thus, are of no assistance to the case sought to be canvassed by the Revenue. 13. The learned ITAT, being the last fact-finding authority, on the basis of the evidence brought on record, has rightly come to the conclusion that the lower tax authorities are not able to sustain the addition without any cogent material on record. We thus find no perversity in the Impugned Order. 13. It may be noteworthy to refer to the Mumbai ITAT in the recent case of Mrs. Pratibha S. Mhatre, Mumbai vs. Income Tax Officer in ITA No.695/Mum./2018 on the long-term capital gains on sale of shares of Shree Shaleen Textiles Limited (same entity in which shares were held by the assessee) allowed the claim of exemption under section 10(38) of the Act. In this case also, as in the present case, the assessment was opened on the basis the report of the Directorate of Investigation(Wing), Kolkata and the AO disallowed the claim on the basis of the statements on oath of the Chairman and Managing Director of company to the effect that they have provided and accommodated bogus Long Term Capital Gains. The ITAT had allowed the claim of the assessee on similar facts. 14. The Lucknow ITAT in the case of Achal Gupta vs. ITO (ITAT Lucknow) I.T.A. No.501/Lkw/2019 held that the documents demonstrates that the assessee had purchased shares through Brokers for which the payment was made through banking channels. The assessee had sold shares I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 13 through an authorized stock broker and payment was received through banking channels after deduction of STT. The AO has not doubted on any of the documents. The only objection raised is that the script from which the assessee had earned Long Term Capital Gain has been held by the Investigation Wing of the Revenue to be a paper entity and that this scrip was being used for creating artificial capital gain. The objection was not found to be acceptable. 15. The Mumbai ITAT in the case of Dipesh Ramesh Vardhan vs. DCIT (ITAT Mumbai) I.T.A. No.7648/Mum/2019 held that the AO has not discharged the onus of controverting the documentary evidences furnished by the assessee and by bringing on record any cogent material to sustain the addition. The allegation of price rigging / manipulation has been levied without establishing the vital link between the assessee and other entities. The whole basis of making addition is a third party statement and no opportunity of cross-examination has been provided to the assessee to confront the said party. As against this, the assessee's position that that the transactions were genuine and duly supported by various documentary evidences, could not be disturbed by the revenue. 16. The Delhi ITAT in the case of Suresh Kumar Agarwal vs. ACIT, ITA No 8703/Del/2019 held that the assessee has produced contract notes, demat statements etc& discharged the onus of proving that he bought & sold the shares. The AO has only relied upon the report of the investigation wing alleging the transaction to be bogus. He ought to have examined a number of issues (which are enumerated in the order) and shown that the transaction is bogus. The capital gains are genuine and exempt from tax. I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 14 17. The Mumbai ITAT in the case of Vijayrattan Balkrishan Mittal vs. DCIT, ITA No.3311/Mum/2019 held that the fact that a scam has taken place in some penny stocks does not mean that all transactions in penny stocks can be regarded as bogus. In deciding whether the claim is genuine or not, the authorities have to be guided by the legal evidence and not on general observations based on statements, probabilities, human behavior, modus operandi etc. The AO has to show with evidence the chain of events and live link of the assessee's involvement in the scam including that he paid cash and in return received exempt LTCG gains. 18. We also find that ITAT, Ahmedabad Bench in identical facts and circumstances in the case of Shri Pratik Suryakant Shah vs. ITO and others in ITA Nos.810/Ahd/2015 and others has decided the issue in favor of assessee. The relevant extract of the order is reproduced as under: 13. Having heard the rival contentions, we have carefully perused the orders of the authorities below. As mentioned elsewhere, we have considered the facts in ITA No.810/Ahd/2015. We find that the assessee had purchased 3000 shares of Telant Info Ltd from M/s. Mahasagar Securities Pvt Ltd on April 2004. The consideration was paid and the payment of consideration is not in dispute. The shares of Telant Info Ltd were listed in the Bombay Stock Exchange at that point of lime. The shares so purchased were sold through M/s. Alliance Intermediateries& Network Pvt Ltd and the consideration was received by cheque. It would be pertinent to mention here that though the shares were purchased in physical form, the same were sent to the company with share application form and the shares were transferred by the company in the name of the purchaser. Thereafter, the shares were transferred in the demat account, from where they were sold. It is not the case of the Revenue that the consideration paid by the assessee at the time of purchase of shares was received back in cash, nor it is the case of the Revenue that the sale consideration received by the assessee was returned back in cash. It is also not the case of the Revenue that the shares in question are still lying with the assessee, nor it is the case of the Revenue that the amounts received by the assessee on sale of the shares is more than what is declared by the assessee. I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 15 14. The entire assessment is based upon the statement of Shri Mukesh Choksi. It is an undisputed fact that neither a copy of the statement was supplied to the assessee. nor any opportunity of cross-examination was given by the Assessing Officer/CIT(A). The Hon'ble Supreme Court in the case of Andaman Timber Industries in Civil Appeal No. 4228 of 2006 was seized with the following action of the Tribunal:- "6. The plea of no cross examination granted to the various dealers would not help the appellant case since the examination of the dealers would not bring out any material which would not be in the possession of the appellant themselves to explain as to why their ex factory prices remain static. Since we are not upholding and applying the ex factory prices, as we find them contravened and not normal price as envisaged under section 4(1), we find no reason to disturb the Commissioners orders." 15. The Hon'ble Apex Court held as under:- "According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation 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 was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with 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 brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross- examine those dealers and what extraction the appellant wanted from them. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross- examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 16 could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject mailer of the cross-examination and make the remarks as mentioned 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 accepting or rejecting the submissions. In view the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the Show Cause We, thus, set aside the impugned order as passed In/ the Tribunal and allow this appeal." 16. On the strength of the aforementioned decision of the Hon'ble Supreme Court, the assessment order has to be quashed. 19. For the sake of the completeness of the adjudication, even on facts of the case, the orders of the authorities below cannot be accepted. There is no denying that consideration was paid when the shares were purchased. The shares were thereafter sent to the company for the transfer in the name. The company transferred the shares in the name of the assessee. There is nothing on record which could suggest that the shares were never transferred in the name of the assessee. There is also nothing on record to suggest that the shares were never with the assessee. On the contrary, the shares were thereafter transferred to demat account. The demat account was in the name of the assessee, from where the shares were sold. In our understanding of the facts, if the shares were of some fictitious company which was not listed in the Bombay Stock Exchange/National Stock Exchange, the shares could never have been transferred to demat account. Shri Akash Agarwal may have been providing accommodation entries to various persons but so far as the facts of the case in hand suggest that the transactions were genuine and I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 17 therefore, no adverse inference should be drawn.Further, the alleged operators have not named the assessee as a beneficiary in their statements. 20. In the light of the decisions of the Hon'ble Supreme Court in the case of Andaman Timber Industries (supra) and considering the facts in totality, the claim of the assessee cannot be denied on the basis of presumption and surmises in respect of penny stock by disregarding the direct evidences on record relating to the sale/purchase transactions in shares supported by broker's contract notes, confirmation of receipt of sale proceeds through regular banking channels and the demat account. 21. We also note that the view taken by the ITAT Ahmedabad Bench in the case as discussed above was also upheld by the Hon'ble Gujarat High Court in the case of PCIT vs. Bharti Somchad Shah in Tax Appeal No.1023 of 2017, wherein it was held as under: “1. The appellant-revenue in this appeal under section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act) has challenged the order dated 21.10,2016 made by the Income Tax Appellate Tribunal, Ahmedabad Bench B in ITA No.926/And/2015 for assessment year 2008-09, by proposing the following questions stated to be substantial questions of law: [A] Whether the Appellate Tribunal Is correct in law and on facts in not considering the statement of Shri Mukesh M. Chokshi taken on oath u/s.132(4) of the Act and is binding as evidence or not? [B] Whether the Appellate Tribunal is correct in law and on facts in deleting the additions without appreciating the fact that the assessee had not carried out share transactions through stock exchange and those transactions were carried out off market, thus should be treated as illegal and fraudulent or not? 2. Heard Mrs. Mauna Bhatt, learned senior standing counsel for the appellant and Mr. O.K. Puj, learned advocate for the respondent in the appeal. 3. The learned advocate for the respondent has drawn the attention of the court to the order dated 12.09.2017 passed by this court in the case of Principal Commissioner of Income Tax-5 v. Dhwani Mahendra Shah, rendered in Tax I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 18 Appeal No.674 of 2017, to submit that in an appeal arising out of the common order of the Tribunal, raising identical questions, this court has dismissed the appeal and upheld the order passed by the Tribunal. It was submitted that therefore, for the same reasons, this appeal also deserves to be dismissed. 4. Mrs. Mauna Bhatt, learned senior standing counsel for the revenue, is not in a position to dispute the aforesaid position of law. 5. Having regard to the fact that the controversy involved in the present case stands concluded by the above referred decision of this court, it is not necessary to set out the facts and contentions in detail. For the reasons recorded in the order dated 12.9.2017 passed by this court in Tax Appeal No.674 of 2017, it cannot be said that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise any question of law, much less, a substantial question of law as proposed or otherwise. The appeal, therefore, fails and is, accordingly, summarily dismissed.” 22. The facts of the case on hand are exactly identical to the facts as discussed above. Therefore, the principles laid down by the Tribunal which were subsequently confirmed by the Hon'ble Gujarat High Court are squarely applicable to the facts in the case on hand. Hence, in view of various decisions cited above, and on appreciation of facts on record, the appeal filed by the assessee is allowed. 23. In the result, appeal filed by the assessee is allowed. Order pronounced in the open court on 25-02-2022. Sd/- Sd/- (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANTMEMBER Tanmay TRUE COPY Ahmedabad : Dated 25/02/2022 I.T.A No. 2130/Ahd/2018 A.Y. 2014-15 Page No. Smt. Meera Alpesh Kanugo vs. ITO 19 आदेशक त ल पअ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/ आदेशसे, उप/सहायकपंजीकार आयकरअपील यअ धकरण, अहमदाबाद Strengthened preparation & delivery of orders in the ITAT 1) Date of dictation 05 &06/01/2022 2) Date on which the typed draft is placed before the Dictating Member & Other Member 06/01/2022 3) Date on which the approved draft comes to the Sr. P.S./P.S. /01/2022 4) Date on which the fair order is placed before the Dictating Member for pronouncement /01/2022 5) Date on which the fair order comes back to the Sr. P.S./P.S. 28/02/2022 6) Date on which the file goes to the Bench Clerk 28/02/2022 7) Date on which the file goes the Head Clerk 8) Date on which the file goes to the Assistant Registrar for signature on the order 9) Date of Dispatch of the order