M/s. Sanjay Kumar Patwari (HUF), Kolkata V. ACIT, Circle - 32, , Kolkata

ITA 2269/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4100 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 05-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI; ROBIN CHOUDHURY A
• Assessee Lawyers: A K TULSIYAN; MRS SHIKHA AGRAWAL
• Keywords: Unexplained cash credit; Income from undisclosed sources; Principle of natural justice; Opportunity of cross examination; Transactions in derivatives; Earning of tax free income; Question of law; Accommodation entries; Scheme of amalgamation; Assessment record; Revised return; Penny stocks
• Section: 143(3); 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM ./ITA NOS.2268,2269&2270/KOL/2018 ( / ASSESSMENT YEARS: 2012-13, 2013-14 & 2015-16) SHRI SANJAY KUMAR PATWARI (HUF) FLAT NO. 6A, 6 TH FLOOR, BANYAN TREE, 3A, ROWDAN STREET, KOLKATA-700017 VS. ACIT, CIRCLE-32, KOLKATA ./ ./PAN/GIR NO. : AASHS 7307 E (APPELLANT) .. (RESPONDENT) /BY ASSESSEE SHRI A.K. TULSIYAN, FCA & MRS. SHIKHA AGRAWAL, FCA /BY REVENUE DR. P.K. SRIHARI, CIT-DR & SHRI ROBIN CHOUDHURY, ADDL. CIT- DR /DATE OF HEARING 23-04-2019 ./ITA NO.205/KOL/2018 ( / ASSESSMENT YEAR: 2014-15) SHRI SANJIB KUMAR PATWARI(HUF) 1, ORBIT GRASTIN PLACE, 3 RD FLOOR, KOLKATA-700001 VS. ACIT, CIRCLE-36, KOLKATA ./ ./PAN/GIR NO. : AAPHS 3236 R (APPELLANT) .. (RESPONDENT) /BY ASSESSEE SHRI A.K. TULSIYAN, FCA & MRS. SHIKHA AGRAWAL, FCA /BY REVENUE DR. P.K. SRIHARI, CIT-DR & SHRI ROBIN CHOUDHURY, ADDL. CIT- DR /DATE OF HEARING 29-04-2019 /DATE OF PRONOUNCEMENT 08-05-2019 SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 2 22 2 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED FOUR APPEAL(S) FILED BY THE TWO ASSES SEES, PERTAINING TO ASSESSMENT YEARS2012-13, 2013-14, 2014-15& 2015-16 RESPECTIVELY, ARE DIRECTED AGAINST SEPARATE ORDERS PASSED BY THE COMMISSIONER OF INCOME TAX(APPEALS)-9, KOLKATA DATED 28/09/2018 IN FORMER ASSESSEES CASE AND THE CIT(A)-10, KOLKATAS ORDER DATED 13/11/2017 AS LATTER ASSESSEES CASE RE SPECTIVELY, WHICH IN TURN ARISE OUT OF SEPARATE ASSESSMENT ORDERS PASSED BY THE AS SESSING OFFICER UNDER SECTION 147/143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. SINCE, THE ISSUES INVOLVED IN ALL THE FOUR APPEA L(S) IS COMMON AND IDENTICAL; THEREFORE, THESE APPEALS ARE BEING DISPOSED OF BY T HIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. THE GROUNDS AS WEL L AS THE FACTS NARRATED IN I.T.A. NO. 2270/KOL/2018 , FOR ASSESSMENT YEAR 2015-16, HAVE BEEN TAKEN INTO CONSIDERATION FOR DECIDING THE ABOVE APPEALS EN MASSE . 3. GROUNDS OF APPEAL RAISED BY THE ASSESSEE AS PER LEAD CASE IN I.T.A. NO. 2270/KOL/2018 , FOR ASSESSMENT YEAR 2015-16, ARE AS FOLLOWS: 1.A) THAT THE LD. CIT(A) ERRED IN CONFIRMING THE DI SALLOWANCE OF RS. 7,12,89,467/-MADE BY THE AO ON ACCOUNT OF DEDUCTION OF LTCG CLAIMED BY THE ASSESSEEU/SL0(38) OF THE ACT AND MADE THE AL LEGED ADDITION AS UNEXPLAINED CASH CREDIT U/S 68 BASED ON THE WILD AL LEGATION. IN THE COURSE OF ASSESSMENT AS WELL AS APPELLATE PROCEEDINGS, ALL THE RELEVANT SUPPORTIVE EVIDENCES WERE PRODUCED TO PROVE THE GENUINENESS OF THE TRANSACTION I.E. CONTRACT NOTE, BILL AND VOUCHERS, DEMAT A/C STATEME NT ETC. THE SAID TRANSACTION WAS DONE THROUGH THE REGISTERED STOCK E XCHANGE BROKER ONLY AND PAYMENT WAS MADE THROUGH PROPER BANKING CHANNEL . THEREFORE, THE ADDITION MADE BY THE LD. AO AND CONFIRMED BY THE LD . CIT(A) IS UNJUSTIFIED AND NEEDS TO BE DELETED. 1B) THAT THE LD. CIT(A) ERRED IN NOT ALLOWING THE D EDUCTION CLAIMED U/SL0(38), AS LTCG ON SALE OF SHARES KAILASH AUTO F INANCE LTD. THE TRANSACTION IN THOSE SHARES WAS EARLIER RESTRAINED BY THE SEBI. THEREAFTER, THE SEBI REVOKED HIS EARLIER INTERIM ORDER AND HELD THAT THE COMPANY AND THE ASSESSEE AS WELL NOT INVOLVED IN PRICE MANIPULA TION. AS SUCH, LTCG ON SALE OF SHARES OF KAILASH AUTO FINANCE LTD CAN UNDE R NO CIRCUMSTANCES BE DOUBTED. THUS, THE LTCG CLAIMED U/S 10(38) SHOULD B E ALLOWED AND ADDITION MADE ON WRONG FACTS DESERVE TO BE DELETED. 2) THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ALLE GED ADDITION MERELY RELIED UPON THE STATEMENT OF FEW UNRELATED PERSONS AND ALSO BASED ON THE INFORMATION RECEIVED FROM INVG, WING OF I.T. DEPT. THE SAID STATEMENT WAS SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 3 33 3 TAKEN BEHIND BACK OF THE COMPANY AND DID NOT PROVID ED ANY OPPORTUNITY TO CROSS EXAMINATION TO THEM. THUS, IT IS COMPLETELY D ENIAL OF NATURAL JUSTICE. THE IMPUGNED ADDITION SO MADE MERELY RELYING UPON T HE INFORMATION RECEIVED AND ALLEGED STATEMENTS RECORDED IS UNJUSTI FIED AND DESERVE TO BE DELETED. THEREFORE, THE DISALLOWANCE OF COMMISSION MADE BY THE LD. AO AND CONFIRMED BY THE LD. CIT(A) IS UNJUSTIFIED AND NEEDS TO BE DELETED. 4) THAT THE PETITIONER CRAVES LEAVE TO ADD, ALTER, AMEND OR WITHDRAW ANY GROUND AND GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEAR ING. 4. THE BRIEF FACTS QUA THE ISSUE ARE THAT THE ASSES SEE FILED ITS RETURN OF INCOME ON 31.08.2015, DECLARING TOTAL INCOME AT RS.22,39,320/ -. THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY UNDER SECTION 143(2) OF THE A CT, BY THE DEPARTMENT, ON THE GROUND OF SUSPICIOUS SHARE TRANSACTION IN PENNY STO CK. IN THE RETURN OF INCOME, THE ASSESSEE HAS CLAIMED EXEMPT INCOME U/S 10(38) OF TH E ACT FOR LONG TERM CAPITAL GAIN ON SALE OF SHARES OF M/S KAILASH AUTO FINANCE LTD. THE DETAILS OF WHICH ARE GIVEN BELOW: SALE VALUE OF 7,34,000 SHARES RS. 2,35,57,282 LESS: PURCHASE VALUE RS. 7,34,000 RS. 2,28,23,282 ENIS EDUTECH (THYROCARE) SALE VALUE OF 1,47,000 SHARES RS. 58,37,526 LESS: PURCHASE VALUE RS. 2,35,200 RS. 56,02,326 LIFELINE DRUGS SALE VALUE OF 1,76,000 SHARES RS. 4,39,13,859 LESS: PURCHASE VALUE RS. 10,50,000 RS. 4,28,63,859 TOTAL LONG TERM CAPITAL GAIN ON SALE OF SHARES IS R S. 7,12,89,467/- (RS. 2,28,23,282 + RS. 56,02,326 + RS. 4,28,63,859). THE ASSESSING OFFICER NOTED THAT THE SAID LONG TERM CAPITAL GAIN OF RS. 7,12,89,467/- WAS SHOWN BY THE ASSESSEE, AS RECEIVED IN THE RETUR N OF INCOME. THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS FUR NISHED PURCHASE BILL OF SHARES, BANK STATEMENT, DP STATEMENT AND SOME BROKER NOTES TO STRENGTHEN HIS CLAIM FOR LONG TERM CAPITAL GAIN. HOWEVER, THE ASSESSING OFFI CER NOTED THAT THERE WERE DIRECT EVIDENCES TO SHOW THAT THE LONG TERM CAPITAL GAIN S HOWN WAS NOT NATURAL BUT WAS SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 4 44 4 ARRANGED ONE. THEREFORE, WITH THIS BACKGROUND AN IN VESTIGATION WAS CARRIED OUT BY THE INVESTIGATION WING OF THE DEPARTMENT. THE FINDI NGS OF THE DIRECTORATE OF INVESTIGATION WING OF KOLKATA ARE AS FOLLOWS: 4.1. THE DIRECTORATE OF INVESTIGATION, KOLKATA CAR RIED OUT A COUNTRY WIDE INVESTIGATION TO UNEARTH THE ORGANIZED RACKET OF GE NERATING BOGUS ENTRIES OF LONG TERM CAPITAL GAINS (LTCG) WHICH IS EXEMPT FROM TAX. THE MODUS OPERANDI ADOPTED BY THE OPERATORS WAS TO MAKE THE BENEFICIAR Y BUY SOME SHARES OF A PRE- DETERMINED PENNY STOCK COMPANY CONTROLLED BY THEM. THESE SHARES ARE TRANSFERRED TO THE BENEFICIARY AT A VERY NOMINAL PR ICE MOSTLY OFF-LINE THROUGH PREFERENTIAL ALLOTMENT OR OFF-LINE SALE. THE BENEFI CIARY (AN INDIVIDUAL) HOLDS THE SHARES FOR ONE YEAR, THE STATUARY PERIOD AFTER WHIC H LTCG IS EXEMPT U/S 10(38) OF THE INCOME TAX ACT,1961. IN THE MEANTIME THE OPERAT ORS RIG THE PRICE OF THE STOCK AND GRADUALLY RISE ITS PRICE MANY TIMES, OFTEN 500 TO 1000 TIMES. THIS IS DONE THROUGH LOW VOLUME TRANSACTION INDULGED IN BY THE D UMMIES OF THE OPERATOR AT A PRE-DETERMINED PRICE. WHEN THE PRICE REACHES THE DESIRED LEVEL THE BENEFI CIARY WHO BOUGHT THE SHARES AT A NOMINAL PRICE, IS MADE T O SELL IT TO A DUMMY PAPER COMPANY OF THE OPERATOR. FOR THIS, UNACCOUNTED CASH IS PROVIDED BY THE BENEFICIARY WHICH IS ROUTED THROUGH A FEW LAYERS OF PAPER COMPANIES BY THE OPERATOR AND FINALLY IS PARKED WITH THE DUMMY PAPER COMPANY THAT WILL BUY THE SHARES. 4.2. FURTHER, IT MAY BE MENTIONED HERE THAT THE PRI CE OF THE SHARES OF THE PENNY STOCK COMPANIES ARE RIGGED AND ARE RAISED THROUGH C IRCULAR TRADING. THIS IS MANAGED BY THE 'OPERATOR' OF THE SCRIP. AN 'OPERATO R' IS A PERSON WHO IS MANAGING THE OVERALL AFFAIRS OF THE SCHEME AND HE I S THE ONE WHO CONTACTS THE ENTITIES WHO WISH TO TAKE ENTRY OF BOGUS LTCG / STC G IN THEIR BOOKS AND ARRANGES THE SAME THROUGH THE SCRIPS 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 HEL D AND ARE CONTROLLED BY THE PROMOTER OF THE PENNY STOCK COMPANY AND THE OPERATO R WHO IS ARRANGING FOR THE BOGUS LTCG/LOSS. THIS IS DUE TO THE FACT THAT THE G ENERAL PUBLIC IS NOT INTERESTED IN THESE SHARES AS THESE COMPANIES HAVE NO CREDENTI ALS AND THIS HELPS THE OPERATOR TO KEEP A CONTROL ON THE PRICE MOVEMENT OF THE SHAR ES. 4.3. IF THE BENEFICIARY SAY, 'B' BOUGHT 10,000 SHAR ES OF COMPANY 'P' @ RS. OF 1/- PER SHARE AND SOLD IT @ RS. 1000/- PER SHARE, HE WO ULD MAKE ON PAPER CAPITAL GAIN OF RS, 49,90,000/-. IN HIS BANK ACCOUNT THERE WOULD BE A CHEQUE DEPOSIT OF RS 50,00,000/- PAID BY THE PAPER COMPANY THAT BUYS THE SHARES. THE RECEIPT IS PRIMA FACIE EXEMPT FROM TAX UNDER SECTION 10(38) OF THE I NCOME TAX ACT, 1961. THE DIRECTORATE OF INVESTIGATION, KOLKATA INVESTIGATED TRANSACTIONS IN 84 SUCH PENNY STOCK SHARES QUOTED ON BSE AND EXAMINED ON OATH A L ARGE NUMBER OF BROKERS, DIRECTORS OF COMPANIES THAT FINALLY PURCHASED THE S HARES, THE PROMOTERS OF PENNY STOCK COMPANIES, THE ENTRY OPERATORS WHO MANAGED TH E DUMMY COMPANIES INVOLVED IN PRICE RIGGING. THE MONEY TRIAL OF TRANS ACTIONS WAS ALSO EXAMINED AND, IN A LARGE NUMBER OF TRANSACTIONS TRIAL RIGHT FROM CASH DEPOSIT ACCOUNT TO THE BENEFICIARIES ACCOUNT WAS UNEARTHED. AS A RESULT OF INVESTIGATION INDIVIDUALS WHO HAVE BEEN TAKEN SUCH ENTRY OF BOGUS LTCG AMOUNTING TO SEVERAL CRORES HAVE BEEN IDENTIFIED. THE RESULT OF THE INVESTIGATION IN BRIE F AS UNDER: SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 5 55 5 I) INDIVIDUALS THROUGHOUT THE COUNTRY IDENTIFIED WH O HAVE TAKEN SUCH BOGUS ENTRIES OFLTCG AMOUNTING TO SEVERAL CRORES FROM 2010 TO 201 4. II) THE RESULT OF THE ENQUIRY WAS ALSO SHARED WITH SEBI AND THE SEBI AFTER INVESTIGATING 11 CASES HAVE FOUND THE ALLEGATION TO BE CORRECT. THE BALANCE CASES ARE STILL BEING INVESTIGATED BY SEBI. III) THE TOP 25 GROUPS UNDER EACH INVESTIGATION DIR ECTORATE OF THE COUNTRY WERE CONFRONTED IN COURSE OF FURTHER INVESTIGATION. ALMO ST ALL OF THEM BARRING A FEW HAVE ACCEPTED HAVING TAKEN THE ENTRIES FOR A COMMIS SION. A SUM OF CRORES HAS BEEN VOLUNTARILY SURRENDERED BY SUCH ASSESSEES. IV) IN KOLKATA, WHERE THIS INVESTIGATION WAS STARTE D SOME OF THE BENEFICIARIES WHO HAD TAKEN ENTRIES OF NEARLY RS.40 CRORES HAVE VOLUN TARILY SURRENDERED IT FOR TAXATION WITHOUT ANY FURTHER ENQUIRY. V) SEVERAL ASSESSEES HAVE FILED REVISED RETURN SINC E THE ENQUIRY AND HAVE TAKEN BACK THEIR CLAIM OF EXEMPTION. 4.4. THE SECURITIES AND EXCHANGE BOARD OF INDIA (SE BI) HAS IN THE RECENT PAST, PASSED SOME ORDERS ON THE ISSUE OF MANIPULATION OF SHARE MARKET FOR PROVIDING ACCOMMODATION ENTRY OF BOGUS LTCG. SEBI CONSIDERING THE INPUTS FROM INCOME TAX DEPARTMENT AS WELL AS FROM ITS OWN SURVEILLANCE SYSTEM AND THAT OF THE STOCK EXCHANGE HAS TAKEN APPROPRIATE ACTION IN CASE OF TH E SUSPECT SCRIPS. THESE ACTIONS INCLUDE PASSING INTERIM DIRECTION, SUSPENDING THE T RADE, REDUCING THE PRICE BANK ETC. 5. THEREAFTER, THE ASSESSING OFFICER CONCENTRATED O N CIRCUMSTANTIAL/DIRECT EVIDENCES AGAINST THE CLAIM OF LONG TERM CAPITAL GA IN OF THE ASSESSEE. THE ASSESSING OFFICER IN ORDER TO KEEP THE ORDER SHORT, RESTRICTED HIS DISCUSSION IN ASSESSMENT ORDER, ONLY TO SCRIP, NAMELY, KAILASH AU TO FINANCE LTD. AND NOTED THAT THE SAME WOULD BE APPLICABLE FOR OTHER TWO SHARES A LSO. THE ASSESSING OFFICER AFTER AN EXHAUSTIVE DISCUSSIO N AND ELABORATING FACTUAL MATRIX NOTED THAT THE CLAIM OF LONG TERM CAPITAL GA IN U/S 10(38) SHALL BE DENIED TO THE ASSESSEE INDIVIDUAL, AND SHALL BE ASSESSED AS U NEXPLAINED CASH CREDIT U/S 68 OF THE ACT. THE LD. ASSESSING OFFICER EXAMINED THE DIR ECT CIRCUMSTANTIAL EVIDENCES AND CAME TO THE CONCLUSION THAT THE ASSESSEE WAS ME RELY TAKING ACCOMMODATION ENTRIES FOR THE PURPOSE OF SUCH BOGUS LONG TERM CAP ITAL GAIN MADE BY THE ASSESSEE. THE LD. ASSESSING OFFICER HAS VERY CAREFULLY ANALYZ ED THE INFORMATION RECEIVED FROM THE INVESTIGATION WING, AND HAS RECORDED THE N OTEWORTHY FEATURES OF THE COMPANY WHOSE SHARES WERE PURCHASED/SOLD BY THE ASS ESSEE. THE ECONOMIC PARAMETERS OF THE SAID COMPANY OVER THE IMPUGNED PE RIOD HAS ALSO BEEN BROUGHT ON RECORD, IN THE ANALYSIS. THE RISE AND FALL OF TH E PRICES AS RECORDED HAD BEEN SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 6 66 6 BROUGHT OUT BY THE LD. ASSESSING OFFICER TO BE ARTI FICIAL AND NOT COMMENSURATE WITH THE NORMAL MARKET, AS THE COMPANY HAD NO BUSIN ESS AT ALL. THE LD. ASSESSING OFFICER HAS ALSO BROUGHT FORTH INFORMATION THAT THE REGULATORY AUTHORITY, SEBI HAS ALSO AFTER INVESTIGATING SUCH ABNORMAL PRICE INCREA SES OF CERTAIN STOCK, INVESTIGATED THE MATTER AND SUSPENDED TRADING IN CERTAIN SCRIPS. IT IS VERY CLEAR THAT THE PRICES OF THESE SCRIPS FELL SHARPLY AFTER OFFLOADING OF THESE SCRIPS BY PRE-ARRANGED AND MANIPULATED TRANSACTIONS. THE ENTIRE TRANSACTIONS W ERE CARRIED OUT ON THE STOCK EXCHANGE TO GIVE IT A COLOUR OF REAL TRANSACTIONS. 6. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE S UBMITTED THE PAPERS/DOCUMENTS WHICH WERE FILED BEFORE THE REGIST RAR OF COMPANIES, WHERE THE NAME OF THE ASSESSEE HAD REFLECTED AS A SHAREHOLDER . THE ASSESSEE FURNISHED BEFORE THE AO, THE BANK STATEMENT, CONTRACT NOTES AND DELI VERY INSTRUCTIONS TO THE BROKER BY WAY OF PROOF THAT ALL THESE TRANSACTIONS WERE GE NUINE. HOWEVER, ASSESSING OFFICER REJECTED ALL THE EVIDENCES AND HELD THAT AL L EVIDENCES WERE PRE-PLANNED, THEREFORE, HE ISSUED A SHOW CAUSE NOTICE TO THE ASS ESSEE AND ASKED THE ASSESSEE TO PROVE THE BONA-FIDE OF HIS CLAIM. HOWEVER, IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUE D BY THE ASSESSING OFFICER, THE ASSESSEE SUBMITTED THE FOLLOWING REPLY, WHICH I S REPRODUCED BELOW: SUB: REPLY TO SHOW CAUSE PAN: AASHS 7307 E SIR, IN REFERENCE TO YOUR LETTER NO. ACIT/CIR-32/KOL/201 7-18/AASHS7307E/1423 DATED 14.12.17 WE WOULD LIKE TO STATE AS UNDER: AS REGARDS TO YOUR CONTENTION THAT THE LTCG EARNED BY US IN SCRIPS OF KAILASH AUTO AND LIFELINE DRUGS AND OTHERS ARE NOT NATURAL BUT IS ARRANGED ONE, WE SHALL LIKE TO HIGHLIGHT THE FACT THAT ANY ASSESSEE CLAIMING A TRA NSACTION OF PURCHASE AND SALE OF SHARES TO FALL UNDER LTCG HAS TO PASS FOUR TESTS VI Z I) ASSESSEE SHOULD HAD PURCHASED THE SHARES, II) SHARES TO BE HELD FOR AT LEAST 365 DAYS BY THE ASSE SSEES, III) ASSESSEE SHOULD HAVE SOLD THE SHARES AND IV) FINALLY STT SHOULD HAVE BEEN PAID ON THE SALE OF TH E SHARES. LET US THEM ONE BY ONE. I. ASSESSEE SHOULD HAD PURCHASED THE SHARES. IN THE MATTER OF KAILASH AUTO IN THE INSTANT CASE WE WOULD LIKE TO MENTION THAT W E HAD NEVER PURCHASED THE SHARES OF KAILASH AUTO FROM THE MARKET BUT WE WERE HOLDING THE SHARES OF LTD. SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 7 77 7 COMPANY WHICH HAD UNDERGONE A SCHEME OF ARRANGEMENT OF MERGER BY WHICH THE SCRIP BOUGHT BY THE ASSESSEE GOT MERGED INTO A LISTED COMPANY I.E. KAILASH AUTO. FURTHER WE WOULD LIKE TO HIGHLIGHT THAT THE E NTIRE PROCESS OF MERGER OF THE PRIVATE LIMITED COMPANIES WITH THE LISTED COMPA NIES HAS BEEN ALREADY SUPERVISED AND APPROVED BY THE HONBLE ALLAHABAD HI GH COURT, HONBLE ALLAHABAD HIGH COURT HAD VETTED THE ENTIRE SHARE S WAP MODEL AND PRICE EXCHANGE RATIO AND WE DONT BELIEF THAT THE LD. A.O . WANTS TO CHALLENGE THE PROCESS AND SUPERVISION OF THE HONBLE ALLAHABAD HI GH COURT. IN THE MATTER OF LIFELINE DRUGS IN THE INSTANT CASE WE HAD PURCHASE THE SHARES FROM THE COMPANY DIRECTLY AND SAME HAD BEEN ALLOTTED TO US BY THE CORPORATE ACTIO N ENACTED BY THE COMPANY WITH THE DUE APPROVAL OFSEBI. HERE ALSO WE DOUBT TH AT THE AO WANTS TO CHALLENGE THE PROCESS AND SUPERVISION OF THE SEBI. II. SHARES HAVE TO BE HELD FOR AT LEAST 165 DAYS BY TH E ASSESSEE IN THE MATTER OFKAILASH AUTO IN THE INSTANT CASE THE ASSESSEE HAS PURCHASED SHAR ES IN THE FINANCIAL YEAR 12-13 AND SOLD THE SHARES IN THE FINANCIAL YEAR 14- 15. IN THIS CASE THE ASSESSEE HAD HELD THE SHARES FOR AT LEAST 545 DAYS WHICH IS MUCH MORE THAN 365 DAYS. IF WE AT ALL THINK THAT THE ASSESSEE WAS INVOLVED IN SO CALLED LTCG ORGANISED RACKET THEN HE WOULD HAD VERY WELL COULD HAD SOLD THE SHARES AFTER THE 366 TH DAY AND NOT AFTER SO MANY DAYS. IN THE MATTER OF LIFE LINE PHARMA IN THE INSTANT CASE THE ASSESSEE HAS PURCHASED SHAR ES IN THE FINANCIAL YEAR 12-13 AND SOLD THE SHARES IN THE FINANCIAL YEAR 14- 15. IN THIS CASE THE ASSESSEE HAD HELD THE SHARES FOR AT LEAST 484 DAYS WHICH IS MUCH MORE THAN 365 DAYS. IF WE AT ALL THINK THAT THE ASSESSEE WAS INVOLVED IN SO CALLED LTCG ORGANISED RACKET THEN HE WOULD HAD VERY WELL COULD HAD SOLD THE SHARES AFTER THE 366 TH DAY AND NOT AFTER SO MANY DAYS. III. ASSESSEE SHOULD HAVE SOLD THE SHARES IN THE INSTANT CASE, THE ASSESSEE HAS SOLD SHARES A T THE FLOOR PRICE OF THE STOCK EXCHANGE CONTRACT NOTES RELEVANT THE SALE TRANSACTI ON HAVE BEEN FURNISHED AT THE TIME OF ASSESSMENT PROCEEDINGS. FURTHER WE WOULD LIKE TO BRING SOME FACT TO LIGHT T HAT DURING THE COURSE OF OUR HEARING AT SEBI OFFICE OUT OF VARIOUS SHARES SOLD B Y US IT WAS OBSERVED BY THE WHOLE TIME MEMBER OF SEBI THAT OUT OF VARIOUS SHARE S SO SOLD BY PATWARI FAMILY LARGE NUMBER SUCH SHARES WHICH WERE BEING PU RCHASED BY VARIOUS FIIS V.I.Z. BLACKROCK ADVISORS, LLC A/C, THE MASTER TRUS T BANK OF JAPAN, BLACKROCK REAL ASSET EQUITY TRUST, COLLEGE RETIREME NT EQUITIES FUND, EMERGING MARKETS PLUS SERIES OF BLACKROCK QUANTITAT IVE PARTNERS LLP, ISHARES CORE EMERGING MARKETS MAURITIUS CO, ISHARES INDIA MAURITIUS COMPANY, ISHARES INDIA SE MAURITIUS COMPANY, MERRIL L LYNCH INDIA EQUITIES FUND (MAURITIUS) LTD, MERRILL LYNCH SERIES FUND INC M L FUNDAMENTAL GROWTH STRATEGYDURING THE YEAR FY 14-15. FURTHER IN THE ABOVE CONTEXT WE WOULD LIKE TO MENTION THAT AFTER SEEING THE ABOVE F ACTS AND OTHER SUBMISSION GIVEN BY THE ASSESSEE THE HON'BLE WHOLETIME MEMBER OF SEBI HAS OBSERVED THAT 'THERE ARE NO ADVERSE FINDINGS AGAINST .WITH RESPECT TO THEIR ROLE IN THE MANIPULATION OF THE SCRIP OF KAILASH AUTOCOPY OF TH E ORDER ATTACHED FOR READY REFERENCE. SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 8 88 8 WE DON'T PRESUME THAT THE AO HAD DOUBT ON MY ASSESS EE THAT THEY MAY HAD MADE ARRANGEMENTS WITH THE ABOVE FII'S FOR MANIPULA TION IN THE PRICE AND SOLD THE SHARES TO THEM THEREAFTER. IV. STT SHOULD HAD BEEN PAID ON THE SALE ON THE SHARES THE FACT THAT THE STT HAS BEEN PAID CAN BE EASILY V ERIFIED FROM THE SALE CONTRACT NOTES ALREADY SUBMITTED TO YOUR OFFICE. V. AS TO YOUR CONTENTION THAT THE DIRECTORATE OF INVES TIGATION, KOLKATA HAS CARRIED OUT COUNTRY WIDE INVESTIGATION TO UNEARTH T HE ORGANIZED RACKET OF GENERATING BOGUS ENTRIES OF LONG TERM CAPITAL GAINS (LTCG] IN CONTEXT TO THE SAME WE SHALL LIKE TO MENTION THAT A SURVEY ON 21.01.2016 IN THIS CONNECTION WAS CONDUCTED AT OUR PREMISES BUT NEITHE R ANY INCRIMINATING PAPERS WERE FOUND AT OUR, PREMISES NOR AT ANY OTHER PREMISES NOR ANY ADVERSE STATEMENT OF ANY BROKERS / OPERATORS WERE RECORDED ON THE SAID DATE OF THE SURVEYOR POST SURVEY. HENCE FURTHER PROVING THAT WE DIDN'T HAD ANY TYPE OF DIRECT OR INDIRECT INVOLVEMENT IN THE SAID 'ORGANIZ ED RACKET OF GENERATING BOGUS ENTRIES OF LONG TERM CAPITAL GAINS' AS REGARDS TO YOUR STATEMENT 'THE REPORT OF THE INV ESTIGATION WING, KOLKATA CLEARLY INDICATES THAT THE NAME OF THE SCRIP THAT Y OU HAVE PURCHASED / SOLD AS AMONGST THE ONE WHICH HAS BEEN ARTIFICIALLY MANIPUL ATED' WE WOULD LIKE TO STATE AS UNDER: IN THE MATTER OF M/S KAILASH AUTO AS SAID EARLIER THAT WE HAD RECEIVED THE SHARES OF KAILASH AUTO BY VIRTUE OF HON'BLE HIGH COURT ORDER AND THE PRICES SHARES OF K AILASH AUTO FINANCE LIMITED AS ON THE DATE OF APPROVAL OF MERGER WAS RS .26.25 (09.05.13).ASSESSEE HAS SOLD THE SHARES OF KAILASH AUTO FINANCE LIMITED AT AN AVERAGE OF RS. 34.40 I.E. AT A GAIN OF RS. 8.15/- P ER SHARE (31.04% GAIN), WHICH WE DON'T BELIEF THAT IS SUCH AN HUGE PRICE RI SE WHICH CAN GIVE RISE TO ANY DOUBTS. IN THE MATTER OF M/S LIFELINE DRUG IN THE INSTANT CASE OF LIFELINE PHARMA PRICE OF THE SHARES HAS INCREASED FROM RS. 6/- TO RS. 250/- (APPROX.), AS ON THE DATE OF S ALE. AO FEELS THAT THIS IS UNUSUAL BUT LET ME SITE SIMILAR CASE; SIMILAR MOVEM ENT CAN BE SEEN IN THE SHARES OF AVENUE SUPER MART (DMART). ON 24.03.15 DM ART (NOW AVENUE SUPER MART) ISSUED 1,06,38,000 SHARES WERE ISSUED A T RS.34/-. ON PRIVATE PLACEMENT AND ON THE SAME DATE ON 24.03.15 DMART (N OW AVENUE SUPER MART) ISSUED 41,51,800 SHARES WERE ISSUED AT RS. 27 /- ON ESOP. WITHIN 2 YEARS THEREAFTER ON 21.03.17 THE COMPANY GOT ITS SH ARES LISTED WITH THAT DAY'S CLOSING PRICE AT RS. 641.60 WHOOPING 19 TIMES ABOVE THE LAST ALLOTMENT AND 64 TIMES ABOVE THE FACE VALUE. WHEREAS IN OUR CASE THE PRICE HAD ONLY INCREASED BY 41 TIMES AS COMPARED FROM FACE VALUE. AS ON TODA Y I.E. 21.12.17 CLOSING BASIS ITS PRICE HAS INCREASED TO RS.1150/- (APPROX. ) I.E. INCREASE BY 33 TIMES OVER ALLOTTED PRICE AND 115 TIMES OVER THE FACE VAL UE. AS TO YOUR OBSERVATION ON PARA NO. 5.2 REGARDING FI NANCIALS AND COMPARATIVE PRICE OF KAILASH AUTO WE SHALL LIKE TO STATE THAT S UCH MOVEMENT CAN ALSO BE OBSERVED IN OTHER SHARES ALSO AND THIS MOVEMENT DOE S NOT MAKE THE SHARES DUBIOUS: SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 9 99 9 THERE ARE LOTS OF COMPANIES WHICH HAVE DEFEATED THE GENERAL TREND OF INCREASE IN THEIR SHARE PRICE IN SPITE OF THE NEGATIVE OR LO W PROFITABILITY. SIMILAR DATESARE AVAILABLE FOR ALL YEARS FOR VARIOUS COMPA NIES DETAILS OF SUCH TWO COMPANIES WITH CURRENT DATAS ARE REPRODUCED BELOW : SOURCE: MONEY CONTROL NOVEMBER 24,2017 FROM THE ABOVE TABLE IT MAY BE CLEARLY SEEN THAT PR ICES OF RAIN INDUSTRIES HAVE INCREASED MORE THAN SIX TIMES WHEREAS ITS PROF ITS HAVE FALLEN IN THE RELEVANT PERIOD BY 2 PER CENT. IN ANOTHER CASE I.E . THIRUMALAI CHEMICALS EVEN IF THE PROFITS HAVE INCREASED BY 1.32 TIMES BUT THE PRICES OF THE SAME HAVE INCREASED BY ALMOST 10 TIMES. WE SHALL ALSO LIKE TO DRAW YOUR ATTENTION TO ANOTHE R FINANCIAL PARAMETER PRICE TO EARNINGS RATIO (PE) IN CASE OF RAIN INDUSTRIES T HE PE OF INDUSTRY AVERAGE IS 29.44 TIMES WERE AS PE OF RAIN INDUSTRIES IS 351 .68 TIMES I.E. 11.94 TIMES MORE THAN THE INDUSTRY AVERAGE. WHEREAS THE PERFORMANCE OF SO ALLEGED BOGUS LTCG SC RIPS IN THE RELEVANT FINANCIAL YEAR HAS BEEN AS UNDER: FROM THE ABOVE TABLE IT CAN BE SEEN THAT IN THE CUR RENT FINANCIAL YEAR THERE HAS BEEN DECREASED IN THE PRICE OF THE SHARES IN CO MPARISON TO THE INCREASE IN PROFIT DURING THE RELEVANT YEAR. IN CASE WE COMPARE THE SAME WITH THE INCREASE OF PR ICE OF SHARE W.R.T THE PROFITS EARNED IN THE YEAR IN WHICH WE HAD PURCHASE D AND SOLD THE SHARES THEN THE FIGURES SHALL BE SOMEWHAT AS UNDER: FROM THE ABOVE TABLE IT CAN BE CLEARLY SEEN THAT TH E PRICE OF THE SHARES HAD INCREASED ONLY 42.26 TIMES WERE AS THE PROFIT HAVE INCREASED BY 161.36 TIMES. THE PRICE INCREASE HAS BEEN MINUSCULE AS COMPARED T O THE PRICE PROFIT RATIO. SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 1 11 10 00 0 AS TO YOUR OBSERVATION ON PARA NO.5.3 REGARDING WE WOULD LIKE TO BRING THE LATEST JUDGMENT OF SEBI VIS--VIS ORDER NO. SEBI/WT M/MPB/EFD-DRA- 1/31/2017, DATED 21/09/2017 BY CORAM: MADHABIPURI B UCH, WHOLE TIME MEMBER, WHEREIN IT IS CLEARLY VISIBLE FROM (NOTE NO . 6 OF PAGE NO. 15) OF THE PRONOUNCED ORDER THAT THE ABOVE ASSESSEE IS NOT INV OLVED IN PRICE MANIPULATION OF THE SCRIP OF KAILASH AUTO, I HAVE A LSO ENCLOSED THE ABOVE MENTIONED ORDER FOR YOUR REFERENCE. AS TO YOUR OBSERVATION ON PARA NO. 5.4 AS TO UNREA LIST RETURN ON INVESTMENTS, WE WOULD LIKE TO STATE THAT THE REPLY IS COVERED VI DE OUR REPLY TO PARA NO. 5.2 AS TO YOUR OBSERVATION ON PARA NO. 5.5 WE WOULD LIK E TO STATE THAT WE NEVER HAD ANY BUSINESS OR PERSONAL CONNECTION WITH SHRI S UNIL DOKANTA AND WOULD LIKE TO HAVE OPPORTUNITY TO CROSS-EXAMINE THE SAID PERSON. 7. HOWEVER, AFTER GOING THROUGH THE SUBMISSIONS OF THE ASSESSEE AS NOTED ABOVE, THE ASSESSING OFFICER HELD THAT THE ASSESSEE HAS IN TRODUCED / CREDITED CAPITAL OF RS. 7,12,89,467/- DURING THE YEAR IN HIS BOOKS, THE SOU RCE OF WHICH HE HAD EXPLAINED AS PROCEEDS FROM THESE SHARE SALE TRANSACTIONS. SINCE THE EXPLANATION OFFERED BY THE ASSESSEE IN RESPECT OF THE SOURCE OF THIS CAPITAL I NTRODUCED BEING SHARE SALE TRANSACTIONS HAS BEEN HELD TO BE NOT SATISFACTORY I N VIEW OF THE ELABORATE DISCUSSION MADE ABOVE, THEREFORE SECTION 68 IS SQUARELY APPLIC ABLE TO THE ASSESSEE, THEREFORE, THE AMOUNT OF RS.7,12,89,467/- INTRODUCED / CREDITE D BY THE ASSESSEE OUT OF THESE PURPORTED SHARE SALE RECEIPTS DURING THE FINANCIAL YEAR 2014-15 IN HIS CAPITAL ACCOUNT AS HIS INCOME BEING UNEXPLAINED CASH CREDIT U/S 68 OF THE INCOME TAX ACT. THIS WAY, THE ASSESSING OFFICER MADE THE ADDITION U /S 68 OF THE ACT TO THE TUNE OF RS. 7,12,89,467/-. 8. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS CONFIRMED T HE ADDITION MADE BY ASSESSING OFFICER. THE LD. CIT(A) HAS SIMPLY REITERATED THE F INDINGS OF THE ASSESSING OFFICER AND CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 9. AGGRIEVED BY THE ORDER OF THELD CIT(A), THE ASSE SSEE IS IN APPEAL BEFORE US. 10. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFO RE US THAT THE ASSESSEE CLAIMED EXEMPTION OF LONG TERM CAPITAL GAIN OF RS.7,12,89,4 67/- U/S 10(38) OF THE ACT, SINCE THE SHARE PURCHASED / SOLD WERE LISTED SHARES AND WERE PURCHASED AND SOLD THROUGH STOCK BROKER IN STOCK EXCHANGE AND STT WAS DEDUCTED AT THE TIME OF SALE. SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 1 11 11 11 1 THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE U S, THE DETAILS OF THE LONG TERM CAPITAL GAIN OF RS.7,12,89,467/- EARNED DURING THE FINANCIAL YEAR ON ACCOUNT OF SALE OF SHARES THROUGH A RECOGNIZED STOCK BROKERS, IN A RECOGNIZED STOCK EXCHANGE AND CLAIMED AS EXEMPT U/S 10(38) OF THE ACT. FURTHER,TH E LD. COUNSEL SUBMITTED THAT ALL THE RELEVANT DETAILS AND DOCUMENTS ASKED BY THE ASS ESSING OFFICER WERE SUBMITTED AGAINST THE NOTICE U/S 142(1) OF THE ACT, DURING TH E ASSESSMENT PROCEEDINGS. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE SUB MITTED THE FOLLOWING DETAILS AND DOCUMENTS IN SUPPORT OF HIS CLAIM OF EXEMPTION OF LONG TERM CAPITAL GAIN U/S 10(38) OF THE ACT: I) THE DETAILS OF LONG TERM CAPITAL GAINS. II) COPY OF CONTRACT NOTES FOR THE SHARES SOLD DURI NG THE YEAR. III)COPY OF BANK STATEMENT STATING THAT ALL THE PAY MENTS HAVE BEEN RECEIVED THROUGH BANKING CHANNELS. APART FROM THIS, THE LD. COUNSEL FOR THE ASSESSEE A LSO SUBMITTED THE IMPORTANT AND SALIENT FEATURES OF THE LONG TERM CAPITAL GAIN TRAN SACTION ENTERED INTO BY THE ASSESSEE, WHICH ARE GIVEN BELOW: (I). THE ASSESSEE IS A REGULAR INVESTOR IN SHARES A ND SECURITIES AS EVIDENT FROM PAST ASSESSMENT RECORDS. (II). THE SHARES WERE PURCHASED AND SOLD THROUGH A REGISTERED BROKER NAMED 'EUREKA STOCK & SHARE BROKING SERVICES LTD.' IN THE STOCK EXCHANGE. (III). THE SHARES WERE PURCHASED AND SOLD BASED ON THE PREVAILING MARKET CONDITION. (IV).THE PURCHASE AND SALE OF SHARES ARE SUPPORTED BY CONTRACT NOTES. THE PAYMENTS WERE RECEIVED THROUGH PROPER BANKING CHANN EL. (V). THE PURCHASE AND SALE TRANSACTIONS WERE SUBJEC TED TO SECURITY TRANSACTION TAX, SERVICE TAX, BROKERAGE CHARGES AND STAMP DUTY. (VI) THE SHARE PURCHASE AND SALE TRANSACTIONS ARE R EFLECTED IN THE D-MAT ACCOUNT. (VII) THE PURCHASE OF SHARES (INVESTMENTS) WAS NOT DISPUTED IN EARLIER YEAR, WHERE ASSESSMENT IS COMPLETED U/S. 143(3) OF THE INCOME T AX ACT. (VIII) THESE FACTS ARE VERIFIABLE FROM THE REGULAR BOOKS OF ACCOUNTS. SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 1 11 12 22 2 (IX) THE TRANSACTIONS CAN ALSO BE VERIFIED FROM THE STOCK EXCHANGE. (X) LAST BUT NOT THE LEAST THAT, SEBI HAS CLEARED T HEM FROM THE ALLEGATION OF MARKET RIGGING. HENCE, THE GENUINENESS OF THE TRANSACTION CANNOT BE DOUBTED. THE LD. COUNSEL THEREFORE SUBMITTED BEFORE THE BENC H THAT THE LONG TERM CAPITAL GAIN BOOKED BY WAY OF TRANSACTION IN THE ABOVE SAID SCRIPS WOULD NOT BE CONSIDERED BOGUS AND THEREFORE ADDITION MADE BY THE ASSESSING OFFICER SHOULD BE DELETED. 11. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE S UBMITTED THAT THE ASSESSEE HAS GENERATED BOGUS LONG TERM CAPITAL GAIN AND THEREFOR E THE ORDER OF THE ASSESSING OFFICER SHOULD BE UPHELD. IN ORDER TO PROVE HIS STA ND, THE LD. DR FOR THE REVENUE SUBMITTED BEFORE THE BENCH THE FOLLOWING AUTHORITIE S / PRECEDENTS WHICH WE SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 1 11 13 33 3 REDECIDED IN FAVOUR OF THE REVENUE: SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 1 11 14 44 4 SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 1 11 15 55 5 THEREFORE, LD DR FOR THE REVENUE SUBMITTED THAT ASS ESSEE HAS GENERATED BOGUS LONG TERM CAPITAL GAIN AND INVOLVED IN PROVIDING AC COMMODATION ENTRIES THEREFORE THE ORDER OF THE LD CIT(A) SHOULD BE UPHELD. 12. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE ASSESSEE IS A REGULAR INVESTOR IN SHARES AND HAS BEEN INVESTING IN SHARES SINCE PAST SEVERAL YEARS. THE SAID FACT IS E VIDENT FROM THE DETAILS GIVEN BELOW: THUS, FROM THE ABOVE TABLE, IT IS ABUNDANTLY CLEAR THAT THE ASSESSEE IS A REGULAR INVESTOR IN SHARES AND IS HAVING A SUBSTANTIAL AMOU NT OF INVESTMENTS. DURING THE SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 1 11 16 66 6 YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SOLD THE IMPUGNED THREE SCRIPS AND EARNED CAPITAL GAINS ON THE SAME WHICH IS CLAIMED Y EAR AFTER YEAR CONSISTENTLY. THE DETAILS OF LONG TERM CAPITAL GAIN EARNED BY THE ASS ESSEE IS GIVEN BELOW: WE NOTE THAT THE ASSESSEE CLAIMED EXEMPTION OF LTCG OF RS.7,12,89,467/- U/S 10(38) OF THE ACT, SINCE THE SHARES PURCHASED AND S OLD WERE LISTED SHARES AND WERE PURCHASED AND SOLD THROUGH STOCK BROKER IN STOCK EX CHANGE AND STT WAS DEDUCTED AT THE TIME OF SALE. THE DETAILS OF PURCHA SE AND SALES TRANSACTION MADE BY THE ASSESSEE IS GIVEN BELOW: SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 1 11 17 77 7 THEREFORE, THE DETAILS OF LTCG OF RS. 7,12,89,467/- EARNED DURING THE FINANCIAL YEAR ON ACCOUNT OF SALE OF SHARES THROUGH A REGISTE RED STOCK BROKER IN A RECOGNIZED STOCK EXCHANGE AND CLAIMED AS EXEMPT U/S 10(38) OF THE ACT IS AS UNDER: SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 1 11 18 88 8 SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 1 11 19 99 9 WE NOTE THAT THE AO IN HIS ORDER HAS DISCUSSED ABOU T THE INTERIM ORDER OF SEBI, WHERE SEBI HAS RESTRAINED SOME PERSONS INCLUDING AS SESEE FROM ACCESSING THE SECURITIES MARKET. HOWEVER, SEBI IN ITS FINAL ORDER DID NOT GIVE ADVERSE COMMENT.THE SAME WAS REVOKED BY SEB1, VIDE ITS FINA L ORDER, SEB1/WTM/MPB/EFD-DRA- 1/31/2017 DATED 21.09.2017, ( PAGE NOS. 69-84). ASSESSEE'S NAME IS AT S.N. 154 (AT PAGE NO. 80) REA D WITH PARA 7 OF PAGE NO. 83. THE AO HAS MADE SOME OTHER GENERAL ALLEGATIONS INCL UDING THE STATEMENT OF AN ALLEGED ENTRY OPERATOR SRI SUNIL DOKANIA AT PAGE NO . 22 OF THE ASSESSMENT ORDER. HOWEVER, NO COPY OF SUCH STATEMENT WAS GIVEN TO THE ASSESSEE NOR ANY OPPORTUNITY OF CROSS EXAMINATION OF THE PARTY WAS ALLOWED TO TH E ASSESSEE. FURTHER, THE AO DID NOT BROUGHT ANY CORROBORATIVE EVIDENCE ON RECORD TO SUBSTANTIATE THE CONTENTS OF THE STATEMENT RELIED ON.WE NOTE THAT NOT ALLOWING T HE ASSESSEE TO CROSS EXAMINE THE WITNESS BY THE ADJUDICATING AUTHORITY THOUGH THE ST ATEMENTS OF THOSE WITNESS WERE MADE THE BASIS OF THE IMPUGNED ORDER IS A SERIOUS F LAW WHICH MAKES THE ORDER NULLITY. WE NOTE THAT SAME VIEW EXPRESSED BY THE HO N`BLE CALCUTTA HIGH COURT IN THE CASE OF EASTERN COMMERCIAL ENTERPRISES 210 ITR 103 (CAL), WHEREIN IT WAS HELD THAT IT IS A TRITE LAW THAT CROSS EXAMINATION IS THE SINE QUA NON OF DUE PROCESS OF TAKING EVIDENCE AND NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE PARTY UNLESS THE PARTY IS PUT ON NOTICE OF THE CASE MADE OUT AGA INST HIM. THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER BASED ON THESTATEMENT OF AN ALLEGED ENTRY OPERATOR SRI SUNIL DOKANIAIS NOT SUSTAINABLE IN LAW, AS THE ASSESSING OFFICER DID NOT PROVIDE AN OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE STATEMENT OF SRI SUNIL DOKANIA. SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 2 22 20 00 0 13. NOW, COMING TO THE MERITS OF THE ASSESSEE`S CAS E, WE NOTE THAT LD COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US PAPER BOOK WHICH C ONTAIN THE DOCUMENTS AND EVIDENCES IN SUPPORT OF THE PURCHASE AND SALE OF SH ARES ON WHICH THE LONG TERM CAPITAL GAIN(LTCG) AROSE TO THE ASSESSEE. THESE ALL DOCUMENTS AND EVIDENCES WERE AVAILABLE BEFORE THE LD CIT(A) AS WELL AS BEFORE TH E LD AO. THE ASSESSEE SUBMITTED BEFORE US FOLLOWING DOCUMENTS AND EVIDENC ES IN RESPECT OF KAILASH AUTO FINANCE LTD. (1) KAILASH AUTO FINANCE LTD. I) COPY OF PURCHASE BILL DATED 12.02.2012, REFLECTI NG THE PURCHASE OF 3,20,000 SHARES OF CAREFUL PROJECTS ADVISORY LTD. FROM TRUMP TRADERS PVT. LTD. (PAPER BOOK PAGE NO. 4) II) COPY OF PURCHASE BILL DATED 09.10.2012 REFLECTI NG THE PURCHASE OF 9,00,000 SHARES OF CAREFUL PROJECTS ADVISORY LTD. FROM TRUMP TRADERS PVT. LTD. (PAPER BOOK PAGE NO. 5) III) COPY OF BANK STATEMENT REFLECTING THE DEBIT TR ANSACTION OF THE AMOUNT OF RS. 3,20,000/- PAID FOR THE PURCHASE OF SHARES BY CHEQU E NO. 729958 ON 10.02.2012 (PAPER BOOK PAGE NO. 9) IV) COPY OF BANK STATEMENT REFLECTING THE DEBIT TRA NSACTION OF THE AMOUNT OF RS. 9,00,000/- PAID FOR THE PURCHASE OF SHARES BY CHEQU E NO. 037633 ON 09.10.2012 (PAPER BOOK PAGE NO. 8) V) COPY OF STATEMENT OF DEMAT ACCOUNT EVIDENCING TH E DEBIT OF SHARES OF KAILASH AUTO FINANCE LTD. ON 07.04.2014, 09.04.2014, 10,04, 2014, 11.04.2014, 15.04.2014, 16.04.2014 AND SO ON; (PAPER BOOK PAGE NO. 64- 65) VI) COPY OF ORDER APPROVING THE SCHEME OF AMALGAMAT ION PASSED BY THE HON'BLE HIGH COURT IN RELATION TO MERGER OF KAILASH AUTO FI NANCE LTD. AND CAREFUL PROJECTS ADVISORY LTD. AND PANCHSHUL MARKETING LTD. (PAPER BOOK PAGE NO. 85- 115). SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 2 22 21 11 1 VII) COPY OF CONTRACT NOTES EVIDENCING THE SALE OF SHARES OF KAILASH AUTO FINANCE LTD. VIII) COPY OF BANK STATEMENT REFLECTING THE TRANSAC TIONS OF SALE OF SHARES OF KAILASH AUTO FINANCE LTD. (PAPER BOOK PAGE NO. 59-61) IX) SEB1 BY ITS INTERIM ORDER DATED 29.03.2016 REST RAINED 246 ENTITIES FROM ACCESSING THE SECURITIES MARKET AND FROM DEALING AN D BUYING & SELLING IN SECURITIES, DIRECTLY OR INDIRECTLY IN ANY MANNER WH ATSOEVER TILL ANY FURTHER DIRECTIONS (PAGE NO. 69) AND INCLUDED KAILASH AUTO FINANCE LTD. AND ASSESSEE AT SERIAL NO. 1 AND SERIAL NO. 156 (PAGE NOS. 70 & 74 RESPECTIVELY) . X) THE SAME WAS REVOKED BY SEB1 VIDE ITS ORDER SEB1 /WTM/MPB/EFD-DRA- 1/31/2017 DATED 21.09.2017 (PAGE NOS. 69-84). ASSES SEE'S NAME IS AT S.N. 154 (AT PAGE NO. 80) READ WITH PARA 7 OF PAGE NO. 83. (2) LIFELINE DRUG & PHARMA LTD. I) COPY OF ALLOTMENT ADVICE DATED 05.10.2012 REFLEC TING THE PURCHASE OF 20,000 SHARES OF LIFELINE DRUGS & PHARMA LTD. (PAPER BOOK PAGE NO. 6) (LATER, 20,000 SHARES OF RS. 10 EACH WERE SPLIT TO 2,00,000 SHARES OF RS. 1 EACH) II) COPY OF BANK STATEMENT REFLECTING THE DEBIT TRA NSACTION OF THE AMOUNT OF RS. 12,00,000/- PAID FOR THE PURCHASE OF SHARES,BY CHEQ UE NO. 037632 ON 01.10.2012 (PAPER BOOK PAGE NO. 8) III) COPY OF STATEMENT OF DEMAT ACCOUNT EVIDENCING THE DEBIT OF SHARES OF LIFELINE DRUGS & PHARMA LTD. ON 01.07.2014, 08.07.2 014, 11.07.2014, 15.07.2014, 21.07.2014 AND SO ON; (PAPER BOOK PAGE NO. 66-67) IV) COPY OF CONTRACT NOTES EVIDENCING THE SALE OF S HARES OF LIFELINE DRUGS & PHARMA LTD.; V) COPY OF BANK STATEMENT REFLECTING THE TRANSACTIO NS OF SALE OF SHARES OF LIFELINE DRUGS & PHARMA LTD. (PAPER BOOK PAGE NO. 59-61) (3) EINS EDUTCEHLTD. (NOW APLAYA CREATIONS LTD.) SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 2 22 22 22 2 I)COPY OF PURCHASE BILL DATED 10.08.2013, REFLECTIN G THE PURCHASE OF 50,000 SHARES OF EINS EDUTECH LTD. FROM NEPTUNE FINANCIAL ADVISOR Y PVT. LTD. (PAPER BOOK PAGE NO.7); II) COPY OF BANK STATEMENT REFLECTING THE DEBIT TRA NSACTION OF THE AMOUNT OF RS. 8,00,000/- PAID FOR THE PURCHASE OF SHARES BY CHEQU E NO. 37644 ON 01.08.2013 (PAPER BOOK PAGE NO. 10) III) COPY OF STATEMENT OF DEMAT ACCOUNT EVIDENCING THE DEBIT OF SHARES OF EINS EDUTECH LTD. ON 01.12.2014, 02.12.2014, 06.12.2014, 11.12.2014 AND SO ON; (PAPER BOOK PAGE NO. 63) IV) COPY OF CONTRACT NOTES EVIDENCING THE SALE OF S HARES OF E1NS EDUTECH LTD.; V).COPY OF BANK STATEMENT REFLECTING THE TRANSACTIO NS OF SALE OF SHARES OF EINS EDUTECH LTD. (PAPER BOOK PAGE NO. 59-61) . THEREFORE, BY SUBMITTING THESE PLETHORA DOCUMENTS A ND EVIDENCES, THE LD COUNSEL FOR THE ASSESSEE CLAIMED THAT LONG TERM CAPITAL GAI N (LTCG) EARNED IN RESPECT OF THE SCRIPS, NAMELY: KAILASH AUTO FINANCE LTD., LIFELINE DRUG & PHARMA L TD, AND EINS EDUTCEH LTD. (NOW APLAYA CREATIONS LTD.) ARE GENUI NE. WE ALSO NOTE THAT THE SECURITIES EXCHANGE BOARD OF INDIA (SEBI) ALSO DECLARED THESE SCRIPS AND SHARES AS GENUINE AND THE INTERIM ORDER PASSED BY THE SEBI WAS REVOKED BY SEB1 ITSELF, VIDE ITS ORDER SEB1/WTM/MPB/EFD-DRA- 1/31/2017 DATED 21.09.2017 (P AGE NOS. 69-84). ASSESSEE'S NAME IS AT S.N. 154 (AT PAGE NO. 80) REA D WITH PARA 7 OF PAGE NO. 83. HENCE, WE NOTE THAT SINCE THESE SHARES/SCRIPS WERE TRADED ON THE PLATFORM OF RECOGNIZED STOCK EXCHANGE AND THE SECURITIES EXCHANGE BOARD OF INDIA (SEBI) DID N OT GIVE ANY ADVERSE REPORT THEREFORE, LONG TERM CAPITAL GAIN ARISE OR EARNED B Y THE ASSESSEE SHOULD BE GENUINE AND IT SHOULD NOT BE BOG US BY ANY STRETCH OF IMAGINATION. MOREOVER, THE ASSESSING OFFICER DID NO T DOUBT ON THE DOCUMENTS AND EVIDENCES AS NOTED BY US ABOVE. THE ASSESSING OFFIC ER MAINLY MADE ADDITION BASED ON SUSPICION, AND PROBABILITY. AS WE HAVE NOTED THA T IN THE COURSE OF ASSESSMENT PROCEEDINGS, ALL THE RELEVANT DETAILS AND DOCUMENTS REQUISITIONED BY THE LD. ASSESSING OFFICER IN NOTICE U/S 142(1) WAS FILED BE FORE HIM. THE ASSESSEE HAS SUBMITTED THE DETAILS OF LTCG, COPY OF CONTRACT NO TES, BANK STATEMENTS, ALLOTMENT SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 2 22 23 33 3 ADVISE, COPY OF BILLS, DEMAT ACCOUNT AND OTHER NECE SSARY DETAILS BEFORE AO AND THE AO FAILED TO BRING ANY COGENT EVIDENCE ON RECOR D TO SHOW THAT THESE DOCUMENTS AND EVIDENCES WERE FALSE AND UNTRUE. 14. WE WOULD LIKE TO MENTION SOME IMPORTANT SALIENT FEATURES OF THE LTCG TRANSACTION ENTERED INTO BY THE ASSESSEE, WHICH IS GIVEN BELOW: (I) THE ASSESSEE IS A REGULAR INVESTOR IN SHARES AN D SECURITIES AS EVIDENT FROM PAST ASSESSMENT RECORDS. (II) THE SHARES WERE PURCHASED AND SOLD THROUGH A R EGISTERED BROKER NAMED ' EUREKA STOCK & SHARE BROKING SERVICES LTD .' IN THE STOCK EXCHANGE. (III) THE SHARES WERE PURCHASED AND SOLD BASED ON T HE PREVAILING MARKET CONDITION. (IV) THE PURCHASE AND SALE OF SHARES ARE SUPPORTED BY CONTRACT NOTES. THE PAYMENTS WERE RECEIVED THROUGH PROPER BANKING CHANN EL. (V) THE PURCHASE AND SALE TRANSACTIONS WERE SUBJECT ED TO SECURITY TRANSACTION TAX, SERVICE TAX, BROKERAGE CHARGES AND STAMP DUTY. (VI) THE SHARE PURCHASE AND SALE TRANSACTIONS ARE R EFLECTED IN THE D-MAT ACCOUNT. (VII) THE PURCHASE OF SHARES (INVESTMENTS) WAS NOT DISPUTED IN EARLIER YEAR, WHERE ASSESSMENT IS COMPLETED U/S. 143(3) OF THE INCOME T AX ACT. (VIII) THESE FACTS ARE VERIFIABLE FROM THE REGULAR BOOKS OF ACCOUNTS. (IX) THE TRANSACTIONS CAN ALSO BE VERIFIED FROM THE STOCK EXCHANGE. (X) THE SEBI HAS CLEARED THESE SHARES AND SCRIPS FR OM THE ALLEGATION OF MARKET RIGGING. HENCE, THE GENUINENESS OF THE TRANSACTION CANNOT BE DOUBTED. 15. NOW COMING TO THE ALLEGATIONS MADE BY THE ASSES SING OFFICER FOR MAKING THE ADDITION. THE ASSESSING OFFICER ALLEGED IN THE ASS ESSMENT ORDER THAT ON THE BASIS OF INFORMATION RECEIVED FROM THE INVESTIGATION WING , KOLKATA, THE CLAIM OF LTCGU/S 10(38) BY THE ASSESSEE IS BOGUS. IN THE ASS ESSMENT ORDER, THE LD. SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 2 22 24 44 4 ASSESSING OFFICER HAS MENTIONED THE STORY THAT THE LIST OF 84 SCRIPS IDENTIFIED BY THE INVESTIGATION WING WHERE PRICE RIGGING HAVE BEE N FOUND WHICH INCLUDES THE NAME OF THE SCRIPS IN WHICH THE ASSESSEE HAS EARNED LONG TERM CAPITAL GAIN. THE ASSESSING OFFICER ALLEGED THAT THE TRANSACTIONS WER E PRE-ARRANGED TO BOOK SUCH GAIN IN THE HANDS OF THE PRE-FIXED BENEFICIARIES. T HE ABOVE ALLEGATIONS ARE GENERALIZED AND NOT SPECIFIC TO THE CASE OF THE ASS ESSEE. THE ASSESSEE WAS ASKED TO SHOW CAUSE, VIDE LETTER DATED 14.12.2017, AS TO WHY THE LONG TERM CAPITAL GAIN BOOKED BY WAY OF TRANSACTION IN THE AFORESAID SCRIP S WOULD NOT BE CONSIDERED BOGUS, AND CONSEQUENTLY, BE ADDED TO HIS TOTAL INCO ME. THE ASSESSEE DULY REPLIED TO THE SHOW CAUSE NOTICE VIDE HIS LETTER DATED 22.1 2.2017 THEREBY GIVING ALL THE DETAILS AND REASONS AS REQUIRED BY THE AO TO PROVE THAT THE LTCG INCURRED BY THE ASSESSEE ON SALE OF ABOVE MENTIONED SHARES ARE GENU INE AND CANNOT BE CONSIDERED AS BOGUS. HOWEVER, THE LD. AO DID NOT CONSIDER THE SUBMISSION OF THE ASSESSEE AND MADE THE ADDITION OF LTCG IN THE HANDS OF THE A SSESSEE TREATING THE SAME TO BE UNEXPLAINED. WE NOTE THAT IT APPEARS FROM THE SH OW CAUSE NOTICE THAT THE LD. AO HAS RELIED ON THE FOLLOWING INFORMATION FOR ARRI VING AT SUCH CONCLUSION: (A) INFORMATION RECEIVED FROM THE OFFICE OF DIT(INV ), KOL REGARDING ENTRY OF BOGUS LTCG. (B) STATEMENT GIVEN BY SRI SUNIL DOKANIA, AN ALLEGE D ENTRY OPERATOR WHO WAS INVOLVED IN PRICE RIGGING AND PROVIDING BOGUS LTCG THROUGH PENNY STOCKS. SO FAR FIRST ALLEGATION OF AO IS CONCERNED, WE NOTE THAT THE ASSESSEE HAS PURCHASED THE SHARES FROM THE RECOGNIZED STOCK EXCHANGE THROU GH HIS BROKER I.E. EUREKA STOCK & SHARE BROKING SERVICES LTD. ON VARIOUS DATE S. THE ASSESSEE SUBMITTED CONTRACT NOTES. THIS TRANSACTION IS NOT THROUGH ANY PREFERENTIAL ALLOTMENT OR OFFLINE SALE. ALL THE TRANSACTIONS ARE MADE THROUGH PROPER BANKING CHANNELS. THE SHARES WERE SOLD THROUGH REGISTERED SHARE BROKER, M /S EUREKA STOCK & SHARE BROKING SERVICES LTD. IN THE COURSE OF ASSESSMENT P ROCEEDINGS, THE ASSESSEE HAS SUBMITTED ALL THE DETAILS AND DOCUMENTS THAT WERE N ECESSARY FOR ALLOWING THE CLAIM OF THE ASSESSEE. IN THE ASSESSMENT ORDER U/S. 143(3 ), LD. AO HAS STATED THAT THERE WAS INFLOW OF SOME INFORMATION FROM THE INVESTIGATI ON WING ALLEGING THAT THE SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 2 22 25 55 5 ASSESSEE WAS INVOLVED IN SELLING OF SO CALLED ' PENNY STOCK '. IN THIS REGARD IT WAS SUBMITTED BY THE ASSESSEE BEFORE THE ASSESSING OFFI CER AS FOLLOWS: I) THE ASSESSEE IS A REGULAR INVESTOR IN SHARES AND SECURITIES AS EVIDENT FROM PAST ASSESSMENT RECORDS. II) THE SHARES WERE PURCHASED AND SOLD THROUGH A RE GISTERED BROKER NAMED 'EUREKA STOCK & SHARE BROKING SERVICES LTD.' IN THE STOCK EXCHANGE. III) THE SHARES WERE PURCHASED AND SOLD BASED ON TH E PREVAILING MARKET CONDITION. IV) THE PURCHASE AND SALE OF SHARES ARE SUPPORTED B Y CONTRACT NOTES. THE PAYMENTS WERE RECEIVED THROUGH PROPER BANKING CHANNEL. V) THE PURCHASE AND SALE TRANSACTIONS WERE SUBJECTE D TO SECURITY TRANSACTION TAX, SERVICE TAX, BROKERAGE CHARGES AND STAMP DUTY. VI) THE SHARE PURCHASE AND SALE TRANSACTIONS ARE RE FLECTED IN THE D-MAT ACCOUNT. VII) THE PURCHASE OF SHARES (INVESTMENTS) WAS NOT D ISPUTED IN EARLIER YEAR, WHERE ASSESSMENT IS COMPLETED U/S. 143(3) OF THE INCOME T AX ACT. VIII) THESE FACTS ARE VERIFIABLE FROM THE REGULAR B OOKS OF ACCOUNTS. IX) THE TRANSACTIONS CAN ALSO BE VERIFIED FROM THE STOCK EXCHANGE. X) THE INTERIM ORDER OF SEBI ABOUT WHICH THE AO HAS DISCUSSED IN HIS ORDER, HAS BEEN REVERSED BY THE FINAL ORDER OF SEBI DATED 21.0 9.2017,WHERE THE SEBI HAS CLEARED THE ASSESSEE FROM THE ALLEGATION OF MARKET RIGGING. THEREFORE, SO FAR FIRST ALLEGATION OF THE ASSESSING OFFICER IS CONCERNED, THE ASSESSEE HAS PROVED BEYOND ANY DOUBT THAT ASSESSEE IS A REGU LAR INVESTOR IN SHARES AND SECURITIES. THE SHARES WERE PURCHASED AND SOLD THRO UGH A REGISTERED BROKER NAMED 'EUREKA STOCK & SHARE BROKING SERVICES LTD.' IN THE STOCK EXCHANGE. THE SHARES WERE PURCHASED AND SOLD BASED ON THE PREVAILING MAR KET CONDITION. THE PAYMENTS WERE RECEIVED THROUGH PROPER BANKING CHANNEL. THE P URCHASE AND SALE TRANSACTIONS WERE SUBJECTED TO SECURITY TRANSACTION TAX, SERVICE TAX, BROKERAGE CHARGES AND STAMP DUTY. THE SHARE PURCHASE AND SALE TRANSACTIO NS ARE REFLECTED IN THE D-MAT SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 2 22 26 66 6 ACCOUNT. THE PURCHASE OF SHARES (INVESTMENTS) WAS N OT DISPUTED IN EARLIER YEAR, WHERE ASSESSMENT IS COMPLETED U/S. 143(3) OF THE IN COME TAX ACT. THESE FACTS ARE VERIFIABLE FROM THE REGULAR BOOKS OF ACCOUNTS. THE TRANSACTIONS CAN ALSO BE VERIFIED FROM THE STOCK EXCHANGE. THEREFORE, WE DO NOT AGREE WITH THE ASSESSING OFFICER AND HENCE THE ADDITION MADE BY ASSESSING OF FICER NEEDS TO BE DELETED. SO FAR SECOND ALLEGATION OF THE ASSESSING OFFICER I S CONCERNED, WE NOTE THATASSESSING OFFICER HAS RELIED ON THE STATEMENT G IVEN BY SRI SUNIL DOKANIA, AN ALLEGED ENTRY OPERATOR. WE NOTE THAT THE AO HAS MAD E GENERAL ALLEGATIONS ABOUT THE ALLEGED ENTRY OPERATOR, SRI SUNIL DOKANIA, VIDE PAGE NO. 22 OF THE ASSESSMENT ORDER. WE NOTE THAT NO COPY OF SUCH STATEMENT WAS G IVEN TO THE ASSESSEE NOR ANY OPPORTUNITY OF CROSS EXAMINATION OF THE PARTY WAS A LLOWED TO THE ASSESSEE. FURTHER, THE AO DID NOT BROUGHT ANY CORROBORATIVE EVIDENCE O N RECORD TO SUBSTANTIATE THE CONTENTS OF THE STATEMENT RELIED ON. WE NOTE THAT N OT ALLOWING THE ASSESSEE TO CROSS EXAMINE THE WITNESS BY THE ADJUDICATING AUTHORITY T HOUGH THE STATEMENTS OF THOSE WITNESS WERE MADE THE BASIS OF THE IMPUGNED ORDER I S A SERIOUS FLAW WHICH MAKES THE ORDER NULLITY. WE NOTE THAT SAME VIEW EXPRESSED BY THE HON`BLE CALCUTTA HIGH COURT IN THE CASE OF EASTERN COMMERCIAL ENTERPRISES 210 ITR 103 (CAL), WHEREIN IT WAS HELD THAT IT IS A TRITE LAW THAT CROSS EXAMINAT ION IS THE SINE QUA NON OF DUE PROCESS OF TAKING EVIDENCE AND NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE PARTY UNLESS THE PARTY IS PUT ON NOTICE OF THE CASE MADE OUT AGAINST HIM. WE NOTE THAT THE FACT THAT NEITHER THE STATEMENT RE LIED ON BYTHE AUTHORITIES BELOW WERE PROVIDED TO THE ASSESSEE NOR ANY CROSS EXAMIN ATION WAS ALLOWED TO PROVE THE VERACITY OF THE STATEMENT. WE NOTE THAT THE FACT TH AT IN THE STATEMENT OF THIRD PARTY, THE NAME OF THE ASSESSEE WAS NOT IMPLICATED. EVEN O THERWISE, ACCORDING TO LEARNED COUNSEL, NO ADVERSE INFERENCE COULD BE DRAW N AGAINST THE ASSESSEE ON THE BASIS OF UNTESTED STATEMENTS WITHOUT ALLOWING OPPOR TUNITY OF CROSS-EXAMINATION. FOR THAT WE RELY ON THE FOLLOWING JUDGEMENTS IN SUP PORT OF THE AFORESAID VIEW:- (I) ANDMAN TIMBER INDUSTRIES VS. CCE [2015] 62 TA XMANN.COM 3 (SC) (II) ITO VS. ASHOK KUMAR BANSAL ITA NO. 289/AGR/2 009 (AGRA ITAT) (III) ACIT VS. AMITA AGARWAL & OTHERS ITA NO. 247 /(KOL) OF 2011 (KOL ITAT) SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 2 22 27 77 7 (IV) ITO VS. BIJAYA GANGULY- ITA NOS. 624 & 625/KO L/2011 (KOL ITAT) (V) GANESHMULL BIJAY SINGH BAID HUF VS. DCIT ITA NOS. 544/KOL/2013 (KOLKATA ITAT) (VI) RITA DEVI & OTHERS VS. DCIT IT(SS))A NOS. 22 -26/KOL/2P11 (KOL-ITAT) (VII) MALTI GHANSHYAMBHAI PATADIA VS. ITO - ITA NO .3400/AHD/2015AHMEDABAD ITAT) (VIII) PRATIK SURYAKANT SHAH VS. ITO [2017] 77 TA XMANN.COM 260 (AHMEDABAD ITAT) THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFIC ER BASED ON THESTATEMENT OF AN ALLEGED ENTRY OPERATOR SRI SUNIL DOKANIAIS NOT SUST AINABLE IN LAW, AS THE ASSESSING OFFICER DID NOT PROVIDE AN OPPORTUNITY TO THE ASSES SEE TO CROSS EXAMINE THE STATEMENT OF SRI SUNIL DOKANIA. COUPLED WITH THIS, THE CBDTS CIRCULAR DATED 10.03.2003 ITSELF MADE IT CLEAR THAT SUCH ADMISSION S OR STATEMENTS WITHOUT ANYTANGIBLE EVIDENCE FOUND DURING SEARCH CARRY NO S IGNIFICANCE. 16. WE NOTE THAT SECURITIES EXCHANGE BOARD OF INDIA (SEBI) IS AN AUTHORITY WHICH REGULATES THE LISTED COMPANIES. THE SEBI CONTROLS L ISTED COMPANIES AND MAKES RULES AND REGULATIONS AND THE LISTED COMPANIES ARE SUPPOSED TO FOLLOW THE RULES, REGULATIONS AND DIRECTIONS GIVEN BY SEBI. WE NOTE T HAT SEB1 BY ITS INTERIM ORDER DATED 29.03.2016 RESTRAINED 246 ENTITIES FROM ACCES SING THE SECURITIES MARKET AND FROM DEALING AND BUYING & SELLING IN SECURITIES, DI RECTLY OR INDIRECTLY IN ANY MANNER WHATSOEVER TILL ANY FURTHER DIRECTIONS (PAGE NO. 69) AND INCLUDED KAILASH AUTO FINANCE LTD. AND ASSESSEE AT SERIAL NO. 1 AND SERIAL NO. 156 (PAGE NOS. 70 & 74 RESPECTIVELY) . HOWEVER, THE SAME WAS REVOKED BY SEB1 VIDE ITS ORDE R SEB1/WTM/MPB/EFD- DRA- 1/31/2017 DATED 21.09.2017 (PAGE NOS. 69-84). ASSESSEE'S NAME IS AT S.N. 154 (AT PAGE NO. 80) READ WITH PARA 7 OF PAGE NO. 8 3. WE NOTE THAT THE SEBI BY ITS ORDER BEARING REFERENCE NO. SEBI/WTM/MPB/EFD- DRA-I /31/2017, DATED 21.03.2017, HAS HELD AS UNDER: SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 2 22 28 88 8 6.CONSIDERING THE FACT THAT THERE ARE NO ADVERSE F INDINGS AGAINST THE AFOREMENTIONED 244 ENTITIES WITH RESPECT TO THEIR ROLE IN THE MANI PULATION OF THE SCRIP OF KAILASH AUTO, I AM OF THE CONSIDERED VIEW THAT THE DIRECTIONS ISSUE D AGAINST THEM VIDE INTERIM ORDER DATED MARCH 29, 2016 AND CONFIRMATORY ORDERS DATED JUNE 15, 2016, SEPTEMBER 30, 2016, OCTOBER 21, 2016, OCTOBER 27, 2016 AND JULY 1 3, 2017 ARE LIABLE TO BE REVOKED. IN VIEW OF THE FOREGOING, IN EXERCISE OF THE POWER S CONFERRED UPON US UNDER SECTION 19 OF THE SECURITIES AND EXCHANGE BOARD OF INDIA ACT, 199 2 READ WITH SECTIONS 11, 11(4) AND 11B OF THE SEBI ACT, HEREBY REVOKE THE INTERIM ORDE R DATED MARCH 29, 2016 AND CONFIRMATORY ORDERS DATED JUNE 15, 2016, SEPTEMBER 30,2016, OCTOBER 21,2016, OCTOBER 27,2016 AND JULY 13, 2017 QUA AFORESAID 244 ENTITIE S (PARAGRAPH 5 ABOVE) WITH IMMEDIATE EFFECT. THE REVOCATION OF THE DIRECTIONS ISSUED VIDE THE A BOVE MENTIONED ORDERS (AT PARAGRAPH 7) IS ONLY IN RESPECT OF THE ENTITIES MENTIONED AT PARAGRAPH 5 OF THIS ORDER IN THE MATTER OF KAILASH AUTO. AS REGARDS REMAINING ENTITIES IN THE SCRIP OF KAILASH AUTO, VIOLATIONS UNDER SEBI ACT, PFUTP REGULATIONS, ETC., WERE OBSERVED AN D SEBI SHALL CONTINUE ITS PROCEEDINGS AGAINST THEM. HENCE, THE DIRECTIONS ISS UED VIDE CONFIRMATORY ORDER DATED JUNE 15, 2016 AGAINST THE REMAINING 2 ENTITIES SHAL L CONTINUE. THIS REVOCATION ORDER IS WITHOUT PREJUDICE TO ANY OTHER ACTION SEBI MAY INIT IATE AS PER LAW.' WE NOTE THAT IN THE ABOVE ORDER OF THE SEBI, THE NA ME OF THE ASSESSEE IS ALSO MENTIONED IN THE SERIAL NO. 154. THEREFORE, THE SEB I ITSELF HAS FREED THE ASSESSEE FROM MARKET RIGGING ALLEGATION AND THUS THE ASSESSE E IS PROVED TO BE A BONA-FIDE INVESTOR NOT INVOLVED IN ANY MALICIOUS ACTIVITIES.H ENCE, CONSIDERING THE ABOVE, IT IS ABUNDANTLY CLEAR THAT NO DOUBT CAN BE ARISEN ABO UT THE SHARES BEING PENNY STOCK. 17. WE NOTE THAT THE ASSESSEE HAD NEVER ENTERED INT O ANY TRANSACTION WITH SRI SUNIL DOKANIA AGAINST WHOM INVESTIGATION WING HAD ALLEGED LY MADE INQUIRY. WE ALSO NOTE THAT IN THE EXTRACTS OF THE STATEMENT OF SRI S UNIL DOKANIA GIVEN IN THE SHOW CAUSE NOTICE, IT IS NOWHERE MENTIONED THAT THE ALLE GED PERSON HAS PROVIDED ANY ENTRY TO THE ASSESSEE DIRECTLY. THE STATEMENT TALKS ABOUT THE ENTRIES PROVIDED BY HIM TO PREFERENTIAL ALLOTTEES AND THE MODUS OPERAND I ADOPTED BY HIM FOR PROVIDING THE BOGUS LTCG. THE ASSESSEE BEING A GENUINE INVEST OR WAS UNAWARE OF THE FACT THAT ANY SUCH ACTIVITY WAS UNDERTAKEN IN THE SCRIPS PURCHASED BY HIM. HE WAS NOWHERE, ASSOCIATED WITH THE PERSON ALLEGED TO PROV IDE THE ENTRIES AS ALLEGED BY THE AO. WE ALSO NOTE THAT SEBI HAS GIVEN A CLEAN CH IT TO THE COMPANY AND HAS FREED IT FROM THE ALLEGATION OF MARKET RIGGING. THE REFORE, THE ALLEGATION OF THE AO ITSELF BECOMES INFRUCTUOUS.FURTHER, THE ASSESSEE HA D ALSO REQUESTED FOR AN OPPORTUNITY TO CROSS EXAMINE SRI SUNIL DOKANIA, WHO SE STATEMENT HAS BEEN RELIED ON BY THE AO FOR MAKING THE ADDITION. HOWEVER, THE LD. AO DID NOT PROVIDE ANY SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 2 22 29 99 9 OPPORTUNITY FOR CROSS EXAMINE THE SO-CALLED OPERATO RS. IT IS WELL ESTABLISHED LAW THAT NO ADVERSE VIEW CAN BE TAKEN AGAINST AN ASSESS EE ON THE BASIS OF STATEMENT RECORDED BY DEPARTMENT OF ANY PERSON WITHOUT PROVID ING COPY OF THE STATEMENT TO THE ASSESSEE AND ALSO WITHOUT PROVIDING OPPORTUNITY FOR CROSS EXAMINATION OF THE SAID PERSON. 18. WE NOTE THAT HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. LA VANYA LAND PVT. LTD. [2017] 83TAXMANN.COM 161 (BOM) HELD THAT THERE WAS NO EVIDENCE WHATSOEVER TOALLEGE THAT MONEY CHANGED HANDS BETWEE N THE ASSESSEE AND THE BROKER OR ANY OTHER PERSON INCLUDING THE ALLEGED EX IT PROVIDER WHATSOEVER TO CONVERT UNACCOUNTED MONEY FOR GETTING BENEFIT OF LT CG AS ALLEGED. IN THE SAID CASE, THEHONBLE HIGH COURT AT PARA 21 HELD THAT IN ABSENCE OF ANY MATERIAL TO SHOW THATHUGE CASH WAS TRANSFERRED FROM ONE SIDE TO ANOTHER, ADDITION CANNOT BE SUSTAINED. 19. WE NOTE THAT ALL THE OBSERVATIONS, CONCLUSIONS AND FINDINGS OF THE LOWER AUTHORITIES ARE BASED ON SUSPICION, SURMISES AND RU MOR. IT IS TRITE LAW THAT THE SUSPICION HOWSOEVER STRONG CANNOT PARTAKE THE CHARA CTER OF LEGAL EVIDENCE. REFERENCE WAS MADE TO THE JUDGEMENT OF HONBLE SUPR EME COURT IN THE CASE OF LALCHAND BHAGAT AMBICA RAM VS. CIT (1959) 37ITR 288 (SC, UMACHARAN SHAW 37 ITR 271 AND OMAR SALAY MOHAMED SAIT 37ITR 151. W E NOTE THAT THE ENTIRE CASE OF THE REVENUE IS BASED UPON THE PRESUMPTION T HAT THE ASSESSEE HAS PLOUGHED BACK HIS OWN UNACCOUNTED MONEY IN THE FORM OF BOGUS LTCG. HOWEVER, THIS PRESUMPTION OR SUSPICION HOWSOEVER STRONG IT MAY AP PEAR TO BE, BUT NEEDS TO BE CORROBORATED BY SOME EVIDENCE TO ESTABLISH A LINK T HAT THE ASSESSEE HAD BROUGHT BACK HIS UNACCOUNTED INCOME IN THEFORM OF LTCG. 20. WE NOTE THAT SINCE THE PURCHASE AND SALE TRA NSACTIONS ARE SUPPORTED AND EVIDENCED BY BILLS, CONTRACT NOTES, DEMAT STATEMENT S AND BANK STATEMENTS ETC., AND WHEN THE TRANSACTIONS OF PURCHASE OF SHARES WER E ACCEPTED BY THE LD AO IN EARLIER YEARS, THE SAME COULD NOT BE TREATED AS BOG US SIMPLY ON THE BASIS OF SOME REPORTS OF THE INVESTIGATION WING AND/OR THE ORDERS OF SEBI AND/OR THE STATEMENTS OF THIRD PARTIES. IN SUPPORT OF THE AFORESAID SUBMI SSIONS, THE LDCOUNSEL, IN ADDITION TO THE AFORESAID JUDGEMENTS, HAS REFERRED TO AND RE LIED ON THE FOLLOWING CASES:- SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 3 33 30 00 0 (I) BAIJNATH AGARWAL VS. ACIT [2010] 40 SOT 475 (AGRA (TM) (II) ITO VS. BIBI RANI BANSAL [2011] 44 SOT 500 (AGRA) (TM) (III) ITO VS. ASHOK KUMAR BANSAL ITA NO. 289/AGRA/2009 (AGRA ITAT) (IV) ACIT VS. AMITA AGARWAL & OTHERS ITA NOS. 247/(KOL )/ OF 2011 (KOL ITAT) (V) RITA DEVI & OTHERS VS. DCIT IT(SS))A NOS. 22-26/K OL/2P11 (KOL ITAT) (VI) SURYA PRAKASH TOSHNIWAL VS. ITO ITA NO. 1213/KOL/ 2016 (KOL ITAT) (VII) SUNITA JAIN VS. ITO ITA NO. 201 & 502/AHD/2016 (A HMEDABAD ITAT) (VIII) MS. FARRAH MARKER VS. ITO ITA NO. 3801/MUM/2011 ( MUMBAI ITAT) (IX) ANIL NANDKISHORE GOYAL VS. ACIT ITA NOS. 1256/PN/ 2012 (PUNE ITAT) (X) CIT VS. SUDEEP GOENKA [2013] 29 TAXMANN.COM 402 ( ALLAHABAD HC) (XI) CIT VS. UDIT NARAIN AGARWAL [2013] 29 TAXMANN.COM 76 (ALLAHABAD HC) (XII) CIT VS. JAMNADEVI AGARWAL [2012] 20 TAXMANN.COM 529 (BOMBAY HC) (XIII) CIT VS. HIMANI M. VAKIL [2014] 41 TAXMANN.COM 425 (GUJARAT HC) (XIV) CIT VS. MAHESHCHANDRA G. VAKIL [2013] 40 TAXMANN. COM 326 (GUJARAT HC) (XV) CIT VS. SUMITRA DEVI [2014] 49 TAXMANN.COM 37 (RAJA STHAN HC) (XVI) GANESHMULLBIJAY SINGH BAID HUF VS. DCIT ITA NOS. 544/KOL/2013 (KOLKATA ITAT) (XVII) MEENA DEVI GUPTA & OTHERS VS. ACIT ITA NOS. 4512 & 4513/AHD/2007 (AHMEDABAD ITAT) (XVIII) MANISH KUMAR BAID ITA 1236/KOL/2017 (KOLKATA ITAT) (XIX) MAHENDRA KUMAR BAID ITA 1237/KOL/2017 (KOLKATA ITAT ) 21. THE LDCOUNSEL ALSO BROUGHT TO OUR NOTICE THAT O NCE THE ASSESSEE HAS FURNISHED ALL EVIDENCES IN SUPPORT OF THE GENUINENE SS OF THE TRANSACTIONS, THE ONUS TO DISPROVE THE SAME IS ON REVENUE. HE REFERRED TO THE JUDGEMENT OF HONBLE SUPREME COURT IN THE CASE OF KRISHNANAND AGNIHOTRI VS. THE STATE OF MADHYA PRADESH [1977] 1 SCC 816 (SC) . IN THIS CASE THE HONBLE APEX COURT HELD THAT THE SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 3 33 31 11 1 BURDEN OF SHOWING THAT A PARTICULAR TRANSACTION IS BENAMI AND THE APPELLANT OWNER IS NOT THE REAL OWNER ALWAYS RESTS ON THE PERSON AS SERTING IT TO BE SO AND THE BURDEN HAS TO BE STRICTLY DISCHARGED BY ADDUCING EVIDENCE OF A DEFINITE CHARACTER WHICH WOULD DIRECTLY PROVE THE FACT OF BENAMI OR ESTABLIS H CIRCUMSTANCES UNERRINGLY AND REASONABLY RAISING INFERENCE OF THAT FACT. THE HON BLE APEX COURT FURTHER HELD THAT IT IS NOT ENOUGH TO SHOW CIRCUMSTANCES WHICH MIGHT CREATE SUSPICION BECAUSE THE COURT CANNOT DECIDE ON THE BASIS OF SUSPICION. IT H AS TO ACT ON LEGAL GROUNDS ESTABLISHED BY EVIDENCE. THE LD AR SUBMITTED THAT S IMILAR VIEW HAS BEEN TAKEN IN THE FOLLOWING JUDGMENTS WHILE DECIDING THE ISSUE RE LATING TO EXEMPTION CLAIMED BY THE ASSESSEE ON LTCG ON ALLEGED PENNY SOCKS. (I) ITO VS. ASHOK KUMAR BANSAL ITA NO. 289/AGR/2009 ( AGRA ITAT) (II) ACIT VS. J. C. AGARWAL HUF ITA NO. 32/AGR/2007 (A GRA ITAT) 22. MOREOVER IT WAS SUBMITTED BEFORE US BY LD COUNS EL THAT THE AO WAS NOT JUSTIFIED IN TAKING AN ADVERSE VIEW AGAINST THE ASS ESSEE ON THE GROUND OF ABNORMAL PRICE RISE OF THE SHARES AND ALLEGING PRICE RIGGING . IT WAS SUBMITTED THAT THERE IS NO ALLEGATION IN ORDERS OF SEBI AND/OR THE ENQUIRY REP ORT OF THE INVESTIGATION WING TO THE EFFECT THAT THE ASSESSEE, THE COMPANIES DEALT I N AND/OR HIS BROKER WAS A PARTY TO THE PRICE RIGGING OR MANIPULATION OF PRICE IN BSE/C SE. THE LD AR REFERRED TO THE FOLLOWING JUDGMENTS IN SUPPORT OF THIS CONTENTION W HEREIN UNDER SIMILAR FACTS OF THE CASE IT WAS HELD THAT THE AO WAS NOT JUSTIFIED IN REFUSING TO ALLOW THE BENEFIT UNDER SECTION 10(38) OF THE ACT AND TO ASSESS THE S ALE PROCEEDS OF SHARES AS UNDISCLOSED INCOME OF THE ASSESSEE UNDER SECTION 68 OF THE ACT :- (I) ITO VS. ASHOK KUMAR BANSAL ITA NO. 289/AGR/2009 ( AGRA ITAT) (II) ACIT VS.AMITA AGARWAL & OTHERS - ITA NOS. 247/(KOL )/ OF 2011 (KOL ITAT) (III) LALIT MOHAN JALAN (HUF) VS. ACIT ITA NO. 693/KOL /2009 (KOL ITAT) (IV) MUKESH R. MAROLIA VS. ADDL. CIT [2006] 6 SOT 247 (MUM) 23. WE NOTE THAT THE LD. D.R. FOR THE REVENUE HAD H EAVILY RELIED UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF BIMALCHAND JAIN IN TAX APPEAL NO. 18 OF 2017. WE NOTE THAT IN THE CASE RE LIED UPON BY THE LD. D.R,WE SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 3 33 32 22 2 FIND THAT THE FACTS ARE DIFFERENT FROM THE FACTS OF THE CASE IN HAND. FIRSTLY, IN THAT CASE, THE PURCHASES WERE MADE BY THE ASSESSEE IN CA SH FOR ACQUISITION OF SHARES OF COMPANIES AND THE PURCHASE OF SHARES OF THE COMPANI ES WAS DONE THROUGH THE BROKER AND THE ADDRESS OF THE BROKER WAS INCIDENTAL LY THE ADDRESS OF THE COMPANY. THE PROFIT EARNED BY THE ASSESSEE WAS SHOWN AS CAPI TAL GAINS WHICH WAS NOT ACCEPTED BY THE A.O. AND THE GAINS WERE TREATED AS BUSINESS PROFIT OF THE ASSESSEE BY TREATING THE SALES OF THE SHARES WITHIN THE AMBI T OF ADVENTURE IN NATURE OF TRADE. THUS, IT CAN BE SEEN THAT IN THE DECISION RELIED UP ON BY THE LD. DR, THE DISPUTE WAS WHETHER THE PROFIT EARNED ON SALE OF SHARES WAS CAP ITAL GAINS OR BUSINESS PROFIT. 24. WE NOTE THAT W HEN THE TRANSACTIONS WERE AS PER NORMS PRESCRIBED BY SEBI AND CONCERNED STOCK EXCHANGE AND SUFFERED STT,BROKERAGE , SERVICE TAX, AND CESS. THERE IS NO IOTA OF EVIDENCE OVER THETRANSACTIONS A S IT WERE REFLECTED IN DEMAT ACCOUNT. AO DID NOT DOUBT THE GENUINENESS OF THE DO CUMENTS SUBMITTED BY ASSESSEE. THELD AO FAILED TO BRING ON RECORD ANY EV IDENCE TO SUGGESTTHAT THE SALE OF SHARES BY THE ASSESSEE WERE NOT GENUINE. THE ASS ESSEE PRODUCED THE CONTRACT NOTES, DETAILS OF DEMAT ACCOUNTS AND PRODUCED DOCUM ENTS SHOWING ALL PAYMENTS WERE RECEIVED BYTHE ASSESSEE THROUGH BANKS. IN THES E CIRCUMSTANCES, THE LONG TERM CAPITAL GAIN (LTCG) EARNED BY THE ASSESSEE SHOULD N OT BE TREATED AS BOGUS, AS HELD BY THE JURISDICTIONAL HON`BLE CALCUTTA HIGH COURT I N VARIOUS CASES, AS MENTIONED BELOW: (I) . CIT V. SHREYASHI GANGULI [ITA NO. 196 OF 2012] (CA L- HC) INTHIS CASE THE HONBLE CALCUTTA HIGH COURT HELD TH AT THE ASSESSING OFFICERDOUBTED THE TRANSACTIONS SINCE THE SELLING B ROKER WAS SUBJECTED TO SEBISACTION. HOWEVER, THE TRANSACTIONS WERE AS PER NORMS AND SUFFERED STT, BROKERAGE, SERVICE TAX, AND CESS. THERE IS NO IOTA OF EVIDENCE OVER THETRANSACTIONS AS IT WERE REFLECTED IN DEMAT ACCOUNT. THE APPEAL F ILED BY THEREVENUE WAS DISMISSED. (II) CIT V. RUNGTA PROPERTIES PRIVATE LIMITED [ITA NO. 105 OF 2016] (CAL- HC) SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 3 33 33 33 3 IN THIS CASE THE HONBLE CALCUTTA HIGH COURT AFFIR MED THE DECISION OF THIS TRIBUNAL, WHEREIN, THE TRIBUNAL ALLOWED THE APPEAL OFTHE ASSE SSEE WHERE THE LD AO DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEEIN RESPECT OF HIS TRANSACTIONS IN ALLEGED PENNY STOCKS. THE TRIBUNAL FOUNDTHAT THE LD AO DISA LLOWED THE LOSS ON TRADING OF PENNY STOCK ON THE BASIS OFSOME INFORMATION RECEIVE D BY HIM. HOWEVER, IT WAS ALSO FOUND THAT THE LD AO DID NOT DOUBT THE GENUINE NESS OF THE DOCUMENTS SUBMITTED BY THEASSESSEE. THE TRIBUNAL HELD THAT TH E LD AOS CONCLUSIONS ARE MERELY BASEDON THE INFORMATION RECEIVED BY HIM. THE APPEAL FILED BY THE REVENUE WASDISMISSED. (III) CIT V. ANDAMAN TIMBERS INDUSTRIES LTD [ITA NO . 721OF 2008] (CAL-HC) IN THIS CASE THE HONBLE CALCUTTA HIGH COURT AFFIRM EDTHE DECISION OF THIS TRIBUNAL WHEREIN THE LOSS SUFFERED BY THE ASSESSEE WASALLOWE D SINCE THE LD AO FAILED TO BRING ON RECORD ANY EVIDENCE TO SUGGESTTHAT THE SAL E OF SHARES BY THE ASSESSEE WERE NOT GENUINE. (IV) CIT V. BHAGWATI PRASAD AGARWAL [2009- TMI-34 738 (CAL- HC) IN ITA NO. 22 OF 2009 DATED 29.4.2009] IN THIS CASE THE ASSESSEECLAIMED EXEMPTION OF INCOM E FROM LONG TERM CAPITAL GAINS. HOWEVER, THE LD AO, BASED ON THE INFORMATION RECEIVED BY HIM FROM CALCUTTA STOCKEXCHANGE FOUND THAT THE TRANSACTIONS WERE NOT RECORDED THEREAT. HE THEREFORE HELD THAT THE TRANSACTIONS WERE BOGUS. TH E HONBLE JURISDICTIONALHIGH COURT, AFFIRMED THE DECISION OF THE TRIBUNAL WHEREI N IT WAS FOUNDTHAT THE CLAIM OF TRANSACTIONS ENTERED INTO BY THE ASSESSEE HAVE BEEN PROVED, ACCOUNTED FOR, DOCUMENTED AND SUPPORTED BY EVIDENCE. IT WAS ALSOFO UND THAT THE ASSESSEE PRODUCED THE CONTRACT NOTES, DETAILS OF DEMAT ACCOU NTS AND PRODUCED DOCUMENTS SHOWING ALL PAYMENTS WERE RECEIVED BY THE ASSESSEE THROUGH BANKS. ON THESE FACTS, THE APPEAL OF THE REVENUE WAS SUMMARILY DISMISSED B Y HIGH COURT. (V).THE HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF ALPINE INVESTMENTS ITA 620 OF 2008, DATED 26 TH AUGUST 2008, HELD AS FOLLOWS: IT APPEARS THAT THE SHARE LOSS AND THE WHOLE TRANS ACTIONS WERE SUPPORTED BY CONTRACT NOTES, BILLS AND WERE CARRIED OUT THROUGH RECOGNIZED STOCKBROKER OF THE CALCUTTA STOCK EXCHANGE AND ALL THE PAYMENTS MADE T O THE STOCKBROKER AND ALL THE SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 3 33 34 44 4 PAYMENTS RECEIVEDFROM STOCKBROKER THROUGH ACCOUNT P AYEE INSTRUMENTS, WHICH WERE ALSO FILED IN ACCORDANCE WITH THE ASSESSMENT. IT APPEARS FROM THE FACTS AND MATERIALS PLACED BEFO RE THE TRIBUNAL AND AFTER EXAMINING THE SAME THE TRIBUNAL CAME TO THE CONCLUS ION AND ALLOWED THE APPEAL FILED BY THE ASSESSEE. IN DOING SO, THE TRIBUNAL HE LD THAT THE TRANSACTION FULLY SUPPORTED BY THE DOCUMENTARY EVIDENCES COULD NOT BE BRUSHED ASIDE ON SUSPICION AND SURMISES. HOWEVER, IT WAS HELD THAT THE TRANSAC TIONS OF SHARE ARE GENUINE. THEREFORE, WE DO NOT FIND THAT THERE IS ANY REASON TO HOLD THAT THERE IS ANY SUBSTANTIAL QUESTION OF LAW INVOLVED IN THIS MATTER . HENCE, THE APPEAL BEING ITA NO.620 OF 2008 IS DISMISSED. (VI) THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME VS M/S. BLB CABLES AND CONDUCTORS; ITAT N O.78 OF 2017, GA NO.747 OF 2017; DT. 19 JUNE, 2018, HAD UPHELD THE ORDER OF THE TRIBUNAL BY OBSERVING AS FOLLOWS:- '4. WE HAVE HEARD BOTH THE SIDE AND PERUSED THE MAT ERIALS AVAILABLE ON RECORD. THE LD. AR SUBMITTED TWO PAPERS BOOKS. FIRST BOOK I S RUNNING IN PAGES NO. 1 TO 88 AND 2ND PAPER BOOK IS RUNNING IN PAGES 1 TO 34. BEF ORE US THE LD. AR SUBMITTED THAT THE ORDER OF THE AO IS SILENT ABOUT THE DATE F ROM WHICH THE BROKER WAS EXPELLED. THERE IS NO LAW THAT THE OFF MARKET TRANSACTIONS SH OULD BE INFORMED TO STOCK EXCHANGE. ALL THE TRANSACTIONS ARE DULY RECORDED IN THE ACCOUNTS OF BOTH THE PARTIES AND SUPPORTED WITH THE ACCOUNT PAYEE CHEQUE S. THE LD. AR HAS ALSO SUBMITTED THE IT RETURN, LEDGER COPY, LETTER TO AO AND PAN OF THE BROKER IN SUPPORT OF HIS CLAIM WHICH IS PLACED AT PAGES 72 TO 75 OF THE PAPER BOOK. THE LD. AR PRODUCED THE PURCHASE & SALE CONTRACTS NOTES WHI CH ARE PLACED ON PAGES 28 TO 69 OF THE PAPER BOOK. THE PURCHASE AND SALES REG ISTERS WERE ALSO SUBMITTED IN THE FORM OF THE PAPER BOOK WHICH IS PLACED AT PAGES 76 TO 87. THE BOARD RESOLUTION PASSED BY THE COMPANY FOR THE TRANSACTIO NS IN COMMODITY WAS PLACED AT PAGE 88 OF THE PAPER BOOK. ON THE OTHER HAND, TH E LD. DR RELIED IN THE ORDER OF THE LOWER AUTHORITIES. 4.1 FROM THE AFORESAID DISCUSSION WE FIND THAT THE ASSESSEE HAS INCURRED LOSSES FROM THE OFF MARKET COMMODITY TRANSACTIONS AND THE AO HELD SUCH LOSS AS BOGUS AND INADMISSIBLE IN THE EYES OF THE LAW. THE SAME L OSS WAS ALSO CONFIRMED BY THE LD. CIT(A). HOWEVER, WE FIND THAT ALL THE TRANSACTI ONS THROUGH THE BROKER WERE DULY RECORDED IN THE BOOKS OF THE ASSESSEE. THE BRO KER HAS ALSO DECLARED IN ITS BOOKS OF ACCOUNTS AND OFFERED FOR TAXATION. IN OUR VIEW TO HOLD A TRANSACTION AS BOGUS, THERE HAS TO BE SOME CONCRETE EVIDENCE WHERE THE TRANSACTIONS CANNOT BE PROVED WITH THE SUPPORTIVE EVIDENCE. (VII).M/S CLASSIC GROWERS LTD. VS. CIT [ITA NO. 129 OF 2012] (CAL- HC) IN THIS CASE THE LD AO FOUND THAT THE FORMAL EVIDEN CES PRODUCED BY THE ASSESSEE TO SUPPORT HUGE LOSSES CLAIMED IN THE TRANSACTIONS OF PURCHASE AND SALE OF SHARES WERE STAGE MANAGED. THE HONBLE HIGH COURT HELD THAT THE OPINION OF THE AO THAT THE ASSESSEE GENERATED A SIZEABLE AMOUNT OF LOSS OUT OF PREARRANGED TRANSACTIONS SO AS SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 3 33 35 55 5 TO REDUCE THE QUANTUM OF INCOME LIABLE FOR TAX MIGH T HAVE BEEN THE VIEW EXPRESSED BY THE LD AO BUT HE MISERABLY FAILED TO SUBSTANTIAT E THAT. THE HIGH COURT HELD THAT THE TRANSACTIONS WERE AT THE PREVAILING PRICE AND T HEREFORE THE SUSPICION OF THE AO WAS MISPLACED AND NOT SUBSTANTIATED. (VIII)CIT V. LAKSHMANGARH ESTATE & TRADING CO. LIMI TED [2013] 40 TAXMANN.COM 439 (CAL) IN THIS CASE THE HONBLE CALCUTTA HIGH COURT HELD T HAT ON THE BASIS OF A SUSPICION HOWSOEVER STRONG IT IS NOT POSSIBLE TO RECORD ANY FINDING OF FACT. AS A MATTER OF FACT SUSPICION CAN NEVER TA KE THE PLACE OF PROOF. IT WAS FURTHER HELD THAT IN ABSENCE OF ANY EVIDENCE ON REC ORD, IT IS DIFFICULT IF NOT IMPOSSIBLE, TO HOLD THAT THE TRANSACTIONS OF BUYING OR SELLING OF SHARES WERE COLOURABLE TRANSACTIONS OR WERE RESORTED TO WITH UL TERIOR MOTIVE. WE NOTE THAT ABOVE MENTIONED JUDGMENTS OF HON`BLE C ALCUTTA HIGH COURT, BY AND LARGE HELD THAT WHERETHE WHOLE TRANSACTIONS WERE SU PPORTED BY CONTRACT NOTES, BILLS AND WERE CARRIED OUT THROUGH RECOGNIZED STOCKBROKER OF STOCK EXCHANGE AND ALL THE PAYMENTS MADE TO THE STOCKBROKER AND ALL THE PA YMENTS RECEIVEDFROM STOCKBROKER THROUGH ACCOUNT PAYEE CHEQUES, THEN IN THESE FACTS AND CIRCUMSTANCES ADDITION MADE BY ASSESSING OFFICER ON ACCOUNT OF BO GUS LONG TERM CAPITAL GAIN SHOULD BE DELETED. WE NOTE THAT UNLESS AND UNTIL TH E ORDER OF JURISDICTIONAL HON`BLE HIGH COURT IS REVERSED BY HON`BLE SUPREME COURT, TH E SAME HAS TO BE GIVEN DUE EFFECT. JUDICIAL DISCIPLINE DEMANDS THAT ONCE AN OR DER HAS BEEN PASSED IN THE ASSESSEES OWN CASE, BY THE JURISDICTIONAL HIGH COU RT, THE TRIBUNAL IS DUTY BOUND TO ACT IN ACCORDANCE WITH THE SAME. WE NOTE THAT IN THE CASE OF UNION OF INDIA V. RAGHUBIR SINGH (1989) 178 ITR 548 (SC), THE SUPREME COURT HELDTHAT THE DOCTRINE OF BINDING PRECEDENT HAS MERIT OF PROMOTING CERTAINTY AND CONSISTENCY IN JUD ICIAL DECISIONS. AS PER THE DOCTRINE OF PRECEDENT, ALL LOWER COURTS, TRIBUNALS AND AUTHORITIES EXERCISING JUDICIAL OR QUASI-JUDICIAL FUNCTIONS ARE BOUND BY T HE DECISIONS OF THE HIGH COURT WITHIN WHOSE TERRITORIAL JURISDICTION THESE COURTS, TRIBUNALS &AUTHORITIES FUNCTIONS. THEREFORE, RESPECTFULLY FOLLOWING THE JUDGMENTS OF THE JURISDICTIONAL, HON`BLE HIGH COURT OF CALCUTTA, ON SIMILAR AND IDENTICAL FA CTS, THE ADDITION MADE BY ASSESSING OFFICER SHOULD BE DELETED. SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 3 33 36 66 6 25. WE NOTE THAT W HEN THE TRANSACTIONS WERE AS PER NORMS PRESCRIBED BY SEBI AND CONCERNED STOCK EXCHANGE AND SUFFERED STT,BROKERAGE , SERVICE TAX, AND CESS. THERE IS NO IOTA OF EVIDENCE OVER THETRANSACTIONS A S IT WERE REFLECTED IN DEMAT ACCOUNT. AO DID NOT DOUBT THE GENUINENESS OF THE DO CUMENTS SUBMITTED BY ASSESSEE. THELD AO FAILED TO BRING ON RECORD ANY EV IDENCE TO SUGGESTTHAT THE SALE OF SHARES BY THE ASSESSEE WERE NOT GENUINE. THE ASS ESSEE PRODUCED THE CONTRACT NOTES, DETAILS OF DEMATACCOUNTS AND PRODUCED DOCUME NTS SHOWING ALL PAYMENTS WERE RECEIVED BYTHE ASSESSEE THROUGH BANKS. IN THES E CIRCUMSTANCES, THE LONG TERM CAPITAL GAIN (LTCG) EARNED BY THE ASSESSEE SHOULD N OT BE TREATED AS BOGUS, AS HELD BY THE COORDINATE BENCHES OF ITAT KOLKATA, IN THE F OLLOWING CASES: (I). MR. SANJIV SHROFF,I.T.A. NO. 1197/KOL/2018, AS SESSMENT YEAR: 2014-15, ORDER DATED, 02.01.2019 28. WE NOTE THAT SINCE THE PURCHASE AND SALE TR ANSACTIONS ARE SUPPORTED AND EVIDENCED BY BILLS, CONTRACT NOTES, DEMAT STATEMENT S AND BANK STATEMENTS ETC., AND WHEN THE TRANSACTIONS OF PURCHASE OF SHARES WERE ACCEPTE D BY THE LD AO IN EARLIER YEARS, THE SAME COULD NOT BE TREATED AS BOGUS SIMPLY ON THE BA SIS OF SOME REPORTS OF THE INVESTIGATION WING AND/OR THE ORDERS OF SEBI AND/OR THE STATEMENTS OF THIRD PARTIES. IN SUPPORT OF THE AFORESAID SUBMISSIONS, THE LD AR, IN ADDITION TO THE AFORESAID JUDGEMENTS, HAS REFERRED TO AND RELIED ON THE FOLLOWING CASES:- (XX) BAIJNATH AGARWAL VS. ACIT [2010] 40 SOT 475 (AGRA (TM) (XXI) ITO VS. BIBI RANI BANSAL [2011] 44 SOT 500 (AGRA) (TM) (XXII) ITO VS. ASHOK KUMAR BANSAL ITA NO. 289/AGRA/2009 (AGRA ITAT) (XXIII) ACIT VS. AMITA AGARWAL & OTHERS ITA NOS. 247/(KOL )/ OF 2011 (KOL ITAT) (XXIV) RITA DEVI & OTHERS VS. DCIT IT(SS))A NOS. 22-26/K OL/2P11 (KOL ITAT) (XXV) SURYA PRAKASH TOSHNIWAL VS. ITO ITA NO. 1213/KOL/ 2016 (KOL ITAT) (XXVI) SUNITA JAIN VS. ITO ITA NO. 201 & 502/AHD/2016 (A HMEDABAD ITAT) (XXVII) MS. FARRAH MARKER VS. ITO ITA NO. 3801/MUM/2011 ( MUMBAI ITAT) (XXVIII) ANIL NANDKISHORE GOYAL VS. ACIT ITA NOS. 1256/PN/ 2012 (PUNE ITAT) (XXIX) CIT VS. SUDEEP GOENKA [2013] 29 TAXMANN.COM 402 ( ALLAHABAD HC) (XXX) CIT VS. UDIT NARAIN AGARWAL [2013] 29 TAXMANN.COM 76 (ALLAHABAD HC) (XXXI) CIT VS. JAMNADEVI AGARWAL [2012] 20 TAXMANN.COM 529 (BOMBAY HC) (XXXII) CIT VS. HIMANI M. VAKIL [2014] 41 TAXMANN.COM 425 (GUJARAT HC) (XXXIII) CIT VS. MAHESHCHANDRA G. VAKIL [2013] 40 TAXMANN. COM 326 (GUJARAT HC) (XXXIV) CIT VS. SUMITRA DEVI [2014] 49 TAXMANN.COM 37 (RAJA STHAN HC) (XXXV) GANESHMULLBIJAY SINGH BAID HUF VS. DCIT ITA NOS. 544/KOL/2013 (KOLKATA ITAT) (XXXVI) MEENA DEVI GUPTA & OTHERS VS. ACIT ITA NOS. 4512 & 4513/AHD/2007 (AHMEDABAD ITAT) (XXXVII) MANISH KUMAR BAID ITA 1236/KOL/2017 (KOLKATA ITAT) SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 3 33 37 77 7 (XXXVIII) MAHENDRA KUMAR BAID ITA 1237/KOL/2017 (KOLKATA ITAT ) 29. THE LD AR ALSO BROUGHT TO OUR NOTICE THAT ONCE THE ASSESSEE HAS FURNISHED ALL EVIDENCES IN SUPPORT OF THE GENUINENESS OF THE TRAN SACTIONS, THE ONUS TO DISPROVE THE SAME IS ON REVENUE. HE REFERRED TO THE JUDGEMENT OF HONBLE SUPREME COURT IN THE CASE OF KRISHNANAND AGNIHOTRI VS. THE STATE OF MADH YA PRADESH [1977] 1 SCC 816 (SC). IN THIS CASE THE HONBLE APEX COURT HELD THAT THE BURDEN OF SHOWING THAT A PARTICULAR TRANSACTION IS BENAMI AND THE APPELLANT OWNER IS NOT THE REAL OWNER ALWAYS RESTS ON THE PERSON ASSERTING IT TO BE SO AND THE B URDEN HAS TO BE STRICTLY DISCHARGED BY ADDUCING EVIDENCE OF A DEFINITE CHARACTER WHICH WOULD DIRECTLY PROVE THE FACT OF BENAMI OR ESTABLISH CIRCUMSTANCES UNERRINGLY AND RE ASONABLY RAISING INFERENCE OF THAT FACT. THE HONBLE APEX COURT FURTHER HELD THAT IT I S NOT ENOUGH TO SHOW CIRCUMSTANCES WHICH MIGHT CREATE SUSPICION BECAUSE THE COURT CANN OT DECIDE ON THE BASIS OF SUSPICION. IT HAS TO ACT ON LEGAL GROUNDS ESTABLISH ED BY EVIDENCE. THE LD AR SUBMITTED THAT SIMILAR VIEW HAS BEEN TAKEN IN THE FOLLOWING J UDGMENTS WHILE DECIDING THE ISSUE RELATING TO EXEMPTION CLAIMED BY THE ASSESSEE ON LT CG ON ALLEGED PENNY SOCKS. (III) ITO VS. ASHOK KUMAR BANSAL ITA NO. 289/AGR/2009 ( AGRA ITAT) (IV) ACIT VS. J. C. AGARWAL HUF ITYA NO. 32/AGR/2007 ( AGRA ITAT) 30. MOREOVER, IT WAS SUBMITTED BEFORE US BY LD AR T HAT THE AO WAS NOT JUSTIFIED IN TAKING AN ADVERSE VIEW AGAINST THE ASSESSEE ON THE GROUND OF ABNORMAL PRICE RISE OF THE SHARES AND ALLEGING PRICE RIGGING. IT WAS SUBMI TTED THAT THERE IS NO ALLEGATION IN ORDERS OF SEBI AND/OR THE ENQUIRY REPORT OF THE INV ESTIGATION WING TO THE EFFECT THAT THE ASSESSEE, THE COMPANIES DEALT IN AND/OR HIS BRO KER WAS A PARTY TO THE PRICE RIGGING OR MANIPULATION OF PRICE IN CSE. THE LD AR REFERRED TO THE FOLLOWING JUDGMENTS IN SUPPORT OF THIS CONTENTION WHEREIN UND ER SIMILAR FACTS OF THE CASE IT WAS HELD THAT THE AO WAS NOT JUSTIFIED IN REFUSING TO A LLOW THE BENEFIT UNDER SECTION 10(38) OF THE ACT AND TO ASSESS THE SALE PROCEEDS OF SHARE S AS UNDISCLOSED INCOME OF THE ASSESSEE UNDER SECTION 68 OF THE ACT :- (V) ITO VS. ASHOK KUMAR BANSAL ITA NO. 289/AGR/2009 (AGRA ITAT) (VI) ACIT VS.AMITA AGARWAL & OTHERS - ITA NOS. 247/(KOL )/ OF 2011 (KOL ITAT) (VII) LALIT MOHAN JALAN (HUF) VS. ACIT ITA NO. 693/KOL /2009 (KOL ITAT) (VIII) MUKESH R. MAROLIA VS. ADDL. CIT [2006] 6 SOT 247 (MUM) 31. WE NOTE THAT THE LD. D.R. HAD HEAVILY RELIED UP ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BIMALCHAND JAIN IN TAX APPEAL NO. 18 OF 2017. WE NOTE THAT IN THE CASE RELIED UPON BY THE LD. D.R , WE FIND THAT THE FACTS ARE DIFFERENT FROM THE FACTS OF THE CASE IN HAND. FIRSTLY, IN THA T CASE, THE PURCHASES WERE MADE BY THE ASSESSEE IN CASH FOR ACQUISITION OF SHARES OF C OMPANIES AND THE PURCHASE OF SHARES OF THE COMPANIES WAS DONE THROUGH THE BROKER AND THE ADDRESS OF THE BROKER WAS INCIDENTALLY THE ADDRESS OF THE COMPANY. THE PR OFIT EARNED BY THE ASSESSEE WAS SHOWN AS CAPITAL GAINS WHICH WAS NOT ACCEPTED BY TH E A.O. AND THE GAINS WERE TREATED AS BUSINESS PROFIT OF THE ASSESSEE BY TREAT ING THE SALES OF THE SHARES WITHIN THE AMBIT OF ADVENTURE IN NATURE OF TRADE. THUS, IT CAN BE SEEN THAT IN THE DECISION RELIED UPON BY THE LD. DR, THE DISPUTE WAS WHETHER THE PRO FIT EARNED ON SALE OF SHARES WAS CAPITAL GAINS OR BUSINESS PROFIT. 32.IT IS CLEAR FROM THE ABOVE THAT THE FACTS OF THE CASE OF THE ASSESSEE ARE IDENTICAL WITH THE FACTS IN THE CASES WHEREIN THE CO-ORDINATE BENCH OF THE TRIBUNAL HAS DELETED THE ADDITION AND ALLOWED THE CLAIM OF LTCG ON SALE OF SHARES OF M/S KAFL. WE, THEREFORE, RESPECTFULLY FOLLOWING THE SAME, AND SE T ASIDE THE ORDER OF LD. CIT(A) AND SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 3 33 38 88 8 DIRECT THE AO NOT TO TREAT THE LONG TERM CAPITAL A S BOGUS AND DELETE THE CONSEQUENTIAL ADDITION. (II) JAGMOHAN AGARWAL VS. ACIT, ITA NO.604/KOL/2018 , ORDER DATED 05.09.2018. 35.IN THE LIGHT OF THE DOCUMENTS STATED IN PARA 30 AT PAGE14(SUPRA) WE FIND THAT THERE IS ABSOLUTELY NO ADVERSE MATERIAL TO IMP LICATE THE ASSESSEE TO THE ENTIRE GAMUT OF UNFOUNDED/UNWARRANTED ALLEGATIONS L EVELED BY THE AO AGAINST THE ASSESSEE, WHICH IN OUR CONSIDERED OPINION HAS N O LEGS TO STAND AND THEREFORE HAS TO FALL. WE TAKE NOTE THAT THE LD. DR COULD NOT CONTROVERT THE FACTS WHICH ARE SUPPORTED WITH MATERIAL EVIDENCES F URNISHED BY THE ASSESSEE WHICH ARE ON RECORD AND COULD ONLY RELY ON THE ORDE RS OF THE AO/CIT(A). WE NOTE THAT THE ALLEGATIONS THAT THE ASSESSEE/BROKERS GOT INVOLVED IN PRICE RIGGING/MANIPULATION OF SHARES MUST THEREFORE CONSE QUENTLY FAIL. AT THE COST OF REPETITION, WE NOTE THAT THE ASSESSEE HAD FURNIS HED ALL RELEVANT EVIDENCE IN THE FORM OF BILLS, CONTRACT NOTES, DEMAT STATEMENT AND BANK ACCOUNT TO PROVE THE GENUINENESS OF THE TRANSACTIONS RELEVANT TO THE PURCHASE AND SALE OF SHARES RESULTING IN LONG TERM CAPITAL GAIN. NEITHER THESE EVIDENCES WERE FOUND BY THE AO NOR BY THE LD. CIT(A) TO BE FALSE OR FICT ITIOUS OR BOGUS NOR THE AO HAD ISSUED ANY NOTICE TO THE BROKERS FOR CONFIRMATI ON. THE FACTS OF THE CASE AND THE EVIDENCE IN SUPPORT OF THE EVIDENCE CLEARLY SUPPORT THE CLAIM OF THE ASSESSEE THAT THE TRANSACTIONS OF THE ASSESSEE WERE GENUINE AND THE AUTHORITIES BELOW WAS NOT JUSTIFIED IN REJECTING TH E CLAIM OF THE ASSESSEE EXEMPTED U/S 10(38) OF THE ACT ON THE BASIS OF SUSP ICION, SURMISES AND CONJECTURES. IT IS TO BE KEPT IN MIND THAT SUSPICIO N HOW SO EVER STRONG, CANNOT PARTAKE THE CHARACTER OF LEGAL EVIDENCE. IN THE AFO RESAID FACTS AND CIRCUMSTANCE, FOR ALLOWING THE APPEAL WE RELY ON TH E DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF M/S. ALIPINE INV ESTMENTS IN ITA NO.620 OF 2008 DATED 26 TH AUGUST, 2008 WHEREIN THE HIGH COURT HELD AS FOLLOW S : IT APPEARS THAT THERE WAS LOSS AND THE WHOLE TRANS ACTIONS WERE SUPPORTED BY THE CONTRACT NOTES, BILLS AND WERE CARRIED OUT THROUGH RECOGNIZED STOCK BROKER OF THE CALCUTTA STOCK EXCHANGE AND ALL THE BILLS WERE RECE IVED FROM THE SHARE BROKER THROUGH ACCOUNT PAYEE WHICH ARE ALSO FILED IN ACCOR DANCE WITH THE ASSESSMENT. IT APPEARS FROM THE FACTS AND MATERIALS PLACED BEFO RE THE TRIBUNAL AND AFTER EXAMINING THE SAME, THE TRIBUNAL ALLOWED THE APPEAL BY THE ASSESSEE. IN DOING SO THE TRIBUNAL HELD THAT THE TRANSACTIONS CANNOT BE BRUSHED ASIDE ON SUSPICION AND SURMISES. HOWEVER IT WAS HELD THAT TH E TRANSACTIONS OF THE SHARES ARE GENUINE. THEREFORE WE DO NOT FIND THAT THERE IS ANY REASON TO HOLD THAT THERE IS NO SUBSTANTIAL QUESTION OF LAW HELD IN THIS MATTER. HE NCE THE APPEAL BEING ITA NO.620 OF 2008 IS DISMISSED. 36. WE NOTE THAT THE LD. AR CITED PLETHORA OF THE C ASE LAWS TO BOLSTER HIS CLAIM WHICH ARE NOT BEING REPEATED AGAIN SINCE IT H AS ALREADY BEEN INCORPORATED IN THE SUBMISSIONS OF THE LD. AR (SUPR A) AND HAVE BEEN DULY CONSIDERED TO ARRIVE AT OUR CONCLUSION. THE LD. DR COULD NOT BRING TO OUR NOTICE ANY CASE LAWS TO SUPPORT THE IMPUGNED DECISI ON OF THE LD. CIT(A)/AO. IN THE AFORESAID FACTS AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF SALE SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 3 33 39 99 9 PROCEEDS OF THE SHARES AS UNDISCLOSED INCOME OF THE ASSESSEE U/S 68 OF THE ACT. WE THEREFORE DIRECT THE AO TO DELETE THE ADDIT ION. (III).NAVNEET AGARWAL, ITA NO.2281/KOL/ 2017, ORDER DATED 05.09.2018 THE ASSESSEE IN THIS CASE HAD STATED THAT THE ASSE SSEE WAS ALLOTTED OF 50000 EQUITY SHARES OF SCITIL. THE PAYMENT FOR THE ALLOTM ENT OF SHARES WAS MADE THROUGH AN ACCOUNT PAYEE CHEQUE (COPY OF THE BANK S TATEMENT EVIDENCING THE SOURCE OF MONEY). ANNUAL RETURN NO. 20B WAS FILED W ITH REGISTRAR OF COMPANIES BY SCITIL SHOWING THE ASSESSEE'S NAME AS SHAREHOLDER. THE ASSESSEE LODGED THE SAID SHARES WITH THE DEPOSITORY ESSBSL WITH A DEMAT REQU EST. THE SAID SHARES WERE DEMATERIALIZED AND COPY OF DEMAT REQUEST SLIP ALONG WITH THE TRANSACTION STATEMENT IS PLACED ON RECORD. LATER ON, THE HIGH C OURT APPROVED THE SCHEME OF AMALGAMATION OF SCITIL WITH CSL. IN ACCORDANCE WITH THE SAID SCHEME OF AMALGAMATION, THE ASSESSEE WAS ALLOTTED 50000 EQUIT Y SHARES OF CSL. THE DEMAT SHARES ARE REFLECTED IN THE TRANSACTION STATEMENT O F THE PERIOD FROM 1-11-2011 TO 31-12-2013. THE ASSESSEE SOLD 50000 SHARES THROUGH HER BROKER SKP WHICH WAS A SEBI REGISTERED BROKER AND EARNED A LONG TERM CAPIT AL GAIN. COPY OF FORM NO. 10DB ISSUED BY THE BROKER, IN SUPPORT OF CHARGING O F S.T.T. IN RESPECT OF THE TRANSACTIONS APPEARING IN THE LEDGER IS PLACED ON R ECORD. THE HOLDING PERIOD OF THE SAID SCRIP IS MORE THAN ONE YEAR (ABOVE 500 DAY S) THROUGH IN ORDER TO GET THE BENEFIT OF CLAIM OF LONG TERM CAPITAL GAIN THE HOLD ING PERIOD IS REQUIRED TO BE 365 DAYS THE ASSESSING OFFICER AS WELL AS THE COMMISSIONER ( APPEALS) HAVE REJECTED THESE EVIDENCES FILED BY THE ASSESSEE BY REFERRING TO 'MO DUS OPERANDI' OF PERSONS FOR EARNING LONG TERM CAPITAL GAINS WHICH IS EXEMPT FRO M INCOME TAX. ALL THESE OBSERVATIONS OF INVESTIGATION WING WERE GENERAL IN NATURE AND WERE APPLIED ACROSS THE BOARD TO ALL THE 60,000 OR MORE ASSESSEE S WHO FALL IN THIS CATEGORY. SPECIFIC EVIDENCES PRODUCED BY THE ASSESSEE WERE NO T CONTROVERTED BY THE REVENUE AUTHORITIES. NO EVIDENCE COLLECTED FROM THIRD PARTI ES WAS CONFRONTED TO THE ASSESSEES. NO OPPORTUNITY OF CROSS-EXAMINATION OF P ERSONS, ON WHOSE STATEMENTS THE REVENUE RELIED TO MAKE THE ADDITION, WAS PROVID ED TO THE ASSESSEE. THE ADDITION IS MADE BASED ON A REPORT FROM THE INVESTI GATION WING. THE ISSUE FOR CONSIDERATION IS WHETHER, IN SUCH CAS ES, THE LEGAL EVIDENCE PRODUCED BY THE ASSESSEE HAS TO GUIDE DECISION IN THE MATTER OR THE GENERAL OBSERVATIONS BASED ON STATEMENTS, PROBABILITIES, HUMAN BEHAVIOUR AND DISCOVERY OF THE MODUS OPERANDI ADOPTED IN EARNING ALLEGED BOGUS LTCG AND STCG, THAT HAVE SURFACED DURING INVESTIGATIONS, SHOULD GUIDE THE AUTHORITIES IN ARRIVING AT A CONCLUSION AS TO WHETHER THE CLAIM IS GENUINE OR NOT. AN ALLEGED SCAM MIGHT HAVE TAKEN PLACE ON LTCG ETC. BUT IT HAS TO BE ESTABLISHED IN EACH C ASE, BY THE PARTY ALLEGING SO, THAT THIS ASSESSEE IN QUESTION WAS PART OF THIS SCA M. THE CHAIN OF EVENTS AND THE LIVE LINK OF THE ASSESSEE'S ACTION GIVING HER INVOL VEMENT IN THE SCAM SHOULD BE ESTABLISHED. THE ALLEGATION IMPLY THAT CASH WAS PAI D BY THE ASSESSEE AND IN RETURN THE ASSESSEE RECEIVED LTCG, WHICH IS INCOME EXEMPT FROM INCOME TAX, BY WAY OF CHEQUE THROUGH BANKING CHANNELS. THIS ALLEGATION TH AT CASH HAD CHANGED HANDS, HAS TO BE PROVED WITH EVIDENCE, BY THE REVENUE. EVI DENCE GATHERED BY THE DIRECTOR INVESTIGATION'S OFFICE BY WAY OF STATEMENTS RECORDE D ETC. HAS TO ALSO BE BROUGHT ON RECORD IN EACH CASE, WHEN SUCH A STATEMENT, EVIDENC E ETC. IS RELIED UPON BY THE REVENUE TO MAKE ANY ADDITIONS. OPPORTUNITY OF CROSS EXAMINATION HAS TO BE PROVIDED TO THE ASSESSEE, IF THE ASSESSING OFFICER RELIES ON ANY STATEMENTS OR THIRD PARTY AS EVIDENCE TO MAKE AN ADDITION. IF ANY MATER IAL OR EVIDENCE WAS SOUGHT TO SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 4 44 40 00 0 BE RELIED UPON BY THE ASSESSING OFFICER, HE HAS TO CONFRONT THE ASSESSEE WITH SUCH MATERIAL. THE CLAIM OF THE ASSESSEE CANNOT BE REJEC TED BASED ON MERE CONJECTURES UNVERIFIED BY EVIDENCE UNDER THE PRETENTIOUS GARB O F PREPONDERANCE OF HUMAN PROBABILITIES AND THEORY OF HUMAN BEHAVIOUR BY THE DEPARTMENT. IT IS WELL SETTLED THAT EVIDENCE COLLECTED FROM THI RD PARTIES CANNOT BE USED AGAINST AN ASSESSEE UNLESS THIS EVIDENCE IS PUT BEFORE HIM AND HE IS GIVEN AN OPPORTUNITY TO CONTROVERT THE EVIDENCE. IN THIS CASE, THE ASSES SING OFFICER RELIED ONLY ON A REPORT AS THE BASIS FOR THE ADDITION. THE EVIDENCE BASED ON WHICH THE DDIT REPORT WAS PREPARED IS NOT BROUGHT ON RECORD BY THE ASSESS ING OFFICER NOR IS IT PUT BEFORE THE ASSESSEE. THE SUBMISSION OF THE ASSESSEE THAT SHE IS JUST AN INVESTOR AND AS SHE RECEIVED SOME TIPS AND SHE CHOSE TO INVEST B ASED ON THESE MARKET TIPS AND HAD TAKEN A CALCULATED RISK AND HAD GAINED IN THE P ROCESS AND THAT SHE IS NOT PARTY TO THE SCAM ETC., HAS TO BE CONTROVERTED BY T HE REVENUE WITH EVIDENCE. WHEN A PERSON CLAIMS THAT SHE HAS DONE THESE TRANSACTION S IN A BONA FIDE AND GENUINE MANNER AND WAS BENEFITTED, ONE CANNOT REJECT THIS S UBMISSION BASED ON SURMISES AND CONJECTURES. AS THE REPORT OF INVESTIGATION WIN G SUGGESTS, THERE ARE MORE THAN 60,000 BENEFICIARIES OF LTCG. EACH CASE HAS TO BE A SSESSED BASED ON LEGAL PRINCIPLES OF LEGAL IMPORT LAID DOWN BY THE COURTS OF LAW JUST THE MODUS OPERANDI, GENERALISATION, PREPONDERA NCE OF HUMAN PROBABILITIES CANNOT BE THE ONLY BASIS FOR REJECTING THE CLAIM OF THE ASSESSEE. UNLESS SPECIFIC EVIDENCE IS BROUGHT ON RECORD TO CONTROVERT THE VAL IDITY AND CORRECTNESS OF THE DOCUMENTARY EVIDENCES PRODUCED, THE SAME CANNOT BE REJECTED BY THE ASSESSEE. THE BURDEN OF PROVING A TRANSACTION TO BE BOGUS HAS TO BE STRICTLY DISCHARGED BY ADDUCING LEGAL EVIDENCES, WHICH WOULD DIRECTLY PROV E THE FACT OF BOGUSNESS OR ESTABLISH CIRCUMSTANCE UNERRINGLY AND REASONABLY RA ISING AN INTERFERENCE TO THAT EFFECT. THE ASSESSING OFFICER AS WELL AS THE COMMISSIONER ( APPEALS) HAS BEEN GUIDED BY THE REPORT OF THE INVESTIGATION WING PREPARED WITH RESPECT TO BOGUS CAPITAL GAINS TRANSACTIONS. HOWEVER, THE ASSESSING OFFICER AS WEL L AS THE COMMISSIONER (APPEALS), HAVE BROUGHT OUT ANY PART OF THE INVESTI GATION WING REPORT IN WHICH THE ASSESSEE HAS BEEN INVESTIGATED AND /OR FOUND TO BE A PART OF ANY ARRANGEMENT FOR THE PURPOSE OF GENERATING BOGUS LONG TERM CAPITAL G AINS. NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW THAT THE PERSONS INVESTIG ATED, INCLUDING ENTRY OPERATORS OR STOCK BROKERS, HAVE NAMED THAT THE ASS ESSEE WAS IN COLLUSION WITH THEM. IN ABSENCE OF SUCH FINDING HOW IS IT POSSIBLE TO LINK THEIR WRONG DOINGS WITH THE ASSESSEE. IN FACT, THE INVESTIGATION WING IS A SEPARATE DEPARTMENT WHICH HAS NOT BEEN ASSIGNED ASSESSMENT WORK AND HAS BEEN DELE GATED THE WORK OF ONLY MAKING INVESTIGATION. THE ACT HAS VESTED WIDEST POW ERS ON THIS WING. IT IS THE DUTY OF THE INVESTIGATION WING TO CONDUCT PROPER AND DET AILED INQUIRY IN ANY MATTER WHERE THERE IS ALLEGATION OF TAX EVASION AND AFTER MAKING PROPER INQUIRY AND COLLECTING PROPER EVIDENCES THE MATTER SHOULD BE SE NT TO THE ASSESSMENT WING TO ASSESS THE INCOME AS PER LAW. NO SUCH ACTION EXECUT ED BY INVESTIGATION WING AGAINST THE ASSESSEE. IN ABSENCE OF ANY FINDING SPE CIFICALLY AGAINST THE ASSESSEE IN THE INVESTIGATION WING REPORT, THE ASSESSEE CANNOT BE HELD TO BE GUILTY OR LINKED TO THE WRONG ACTS OF THE PERSONS INVESTIGATED. IN THIS CASE, THE ASSESSING OFFICER AT BEST COULD HAVE CONSIDERED THE INVESTIGATION REPORT AS A STARTING POINT OF INVESTIGATION. THE REPORT ONLY INFORMED THE ASSESSI NG OFFICER THAT SOME PERSONS MAY HAVE MISUSED THE SCRIPT FOR THE PURPOSE OF COLL USIVE TRANSACTION. THE ASSESSING OFFICER WAS DUTY BOUND TO MAKE INQUIRY FR OM ALL CONCERNED PARTIES SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 4 44 41 11 1 RELATING TO THE TRANSACTION AND THEN TO COLLECT EVI DENCES THAT THE TRANSACTION ENTERED INTO BY THE ASSESSEE WAS ALSO A COLLUSIVE T RANSACTION. HOWEVER, THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY EVI DENCE TO PROVE THAT THE TRANSACTIONS ENTERED BY THE ASSESSEE WHICH ARE OTHE RWISE SUPPORTED BY PROPER THIRD PARTY DOCUMENTS ARE COLLUSIVE TRANSACTIONS. THE ASSESSING OFFICER HAVING FAILED TO BRING ON REC ORD ANY MATERIAL TO PROVE THAT THE TRANSACTION OF THE ASSESSEE WAS A COLLUSIVE TRA NSACTION COULD NOT HAVE REJECTED THE EVIDENCES SUBMITTED BY THE ASSESSEE. IN FACT, I N THIS CASE NOTHING HAS BEEN FOUND AGAINST THE ASSESSEE WITH AID OF ANY DIRECT E VIDENCES OR MATERIAL AGAINST THE ASSESSEE DESPITE THE MATTER BEING INVESTIGATED BY V ARIOUS WINGS OF THE INCOME TAX DEPARTMENT HENCE UNDER THESE CIRCUMSTANCES NOTHING CAN BE IMPLICATED AGAINST THE ASSESSEE ONE IS BOUND TO CONSIDER AND RELY ON THE EVIDENCE P RODUCED BY THE ASSESSEE IN SUPPORT OF ITS CLAIM AND BASE DECISION ON SUCH EVID ENCE AND NOT ON SUSPICION OR PREPONDERANCE OF PROBABILITIES NO MATERIAL WAS BROU GHT ON RECORD BY THE ASSESSING OFFICER TO CONTROVERT THE EVIDENCE FURNIS HED BY THE ASSESSEE. UNDER THESE CIRCUMSTANCES, THE EVIDENCE FILED BY THE ASSE SSEE IS ACCEPTED AND THE CLAIM THAT THE INCOME IN QUESTION IS A BONA FIDE LONG TER M CAPITAL GAIN ARISING FROM THE SALE OF SHARES IS ALLOWED AND HENCE EXEMPT FROM INCOME TAX. [PARA 20] 26. TO CONCLUDE,WE NOTETHAT SEBI HAS GIVEN A CLEAN CHIT TO THE COMPANY AND HAS FREED IT FROM THE ALLEGATION OF MARKET RIGGING. THE REFORE, THE ALLEGATION OF THE AO ITSELF BECOMES INFRUCTUOUS. FURTHER, THE ASSESSEE H AD ALSO REQUESTED FOR AN OPPORTUNITY TO CROSS EXAMINE SRI SUNIL DOKANIA, WHO SE STATEMENT HAS BEEN RELIED ON BY THE AO FOR MAKING THE ADDITION. HOWEVER, THE LD. AO DID NOT PROVIDE ANY OPPORTUNITY FOR CROSS EXAMINE, THE SO-CALLED OPERAT ORS. IT IS WELL ESTABLISHED LAW THAT NO ADVERSE VIEW CAN BE TAKEN AGAINST AN ASSESS EE, ON THE BASIS OF STATEMENT RECORDED BY DEPARTMENT OF ANY PERSON WITHOUT PROVID ING COPY OF THE STATEMENT TO THE ASSESSEE AND ALSO WITHOUT PROVIDING OPPORTUNITY FOR CROSS EXAMINATION OF THE SAID PERSON.WE NOTE THAT THE ASSESSEE HAD NEVER ENT ERED INTO ANY TRANSACTION WITH SRI SUNIL DOKANIA, AGAINST WHOM INVESTIGATION WING HAD ALLEGEDLY MADE INQUIRY. WE ALSO NOTE THAT IN THE EXTRACTS OF THE STATEMENT OF SRI SUNIL DOKANIA GIVEN IN THE SHOW CAUSE NOTICE, IT IS NOWHERE MENTIONED THAT THE ALLEGED PERSON HAS PROVIDED ANY ENTRY TO THE ASSESSEE DIRECTLY. WE NOTE THAT THE LD COUNSEL HAS PROVEDTHAT ASSESSEE IS A REGULAR INVESTOR IN SHARES AND SECURITIES. THE SHARES WERE PURCHASED AND SOLD THROUGH A REGISTERED BROKER NAMED ' EUREKA STOCK & SHARE BROKING SERVICES LTD. ' IN THE STOCK EXCHANGE. THE SHARES WERE PURCHASED AND SOLD BASED ON THE PREVAIL ING MARKET CONDITION. THE SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 4 44 42 22 2 PAYMENTS WERE RECEIVED THROUGH PROPER BANKING CHANN EL. THE PURCHASE AND SALE TRANSACTIONS WERE SUBJECTED TO SECURITY TRANSACTION TAX (STT), SERVICE TAX, BROKERAGE CHARGES AND STAMP DUTY. THE SHARE PURCHA SE AND SALE TRANSACTIONS ARE REFLECTED IN THE DMAT ACCOUNT. THE PURCHASE OF SHAR ES (INVESTMENTS) WAS NOT DISPUTED IN EARLIER YEAR, WHERE ASSESSMENT IS COMPL ETED U/S. 143(3) OF THE INCOME TAX ACT. THESE FACTS ARE VERIFIABLE FROM THE REGUL AR BOOKS OF ACCOUNTS. THE TRANSACTIONS CAN ALSO BE VERIFIED FROM THE STOCK EX CHANGE.IT IS CLEAR FROM THE ABOVE THAT THE FACTS OF THE CASE OF THE ASSESSEE AR E IDENTICAL WITH THE FACTS IN THE CASES WHEREIN THE CO-ORDINATE BENCHES OF THIS TRIBU NAL HAS DELETED THE ADDITION AND ALLOWED THE CLAIM OF LTCG. THE ASSESSEE`S CASE IS A LSO COVERED BY THE VARIOUS JUDGMENTS OF JURISDICTIONAL HIGH COURT OF CALCUTTA, AS NOTED (SUPRA). WE, THEREFORE, RESPECTFULLY FOLLOWING THE SAME, SET ASI DE THE ORDER OF LD. CIT(A) AND DIRECT THE AO NOT TO TREAT THE LONG TERMCAPITAL AS BOGUS AND HENCE WE DELETE THE ADDITION OF RS.7,12,89,467/-. 27. THE NEXT ISSUE IN ITA NO.205/KOL/2018, FOR A.Y. 2014-15 IS IN RELATION TO CONFIRMING THE ADDITION OF RS.57,02,785/- AS UNEXPL AINED EXPENDITURE TOWARDS COMMISSION CHARGES OF SALE OF SUCH SHARES BY THE OP ERATOR. WE HAVE ALREADY HELD THAT THE TRANSACTIONS RELATING TO LTCG WERE GENUINE AND NOT THE ACCOMMODATION ENTRIES AS ALLEGED BY THE AO. CONSEQUENTLY, THE ADD ITION OF RS.57,02,785/- IS HEREBY DIRECTED TO BE DELETED. WE ACCORDINGLY HOLD THAT THE ISSUE IS ALLOWED IN FAVOUR OF THE ASSESSEE. 28. SAME ABOVE DETAILED REASONING TO BE FOLLOWED IN ALL REMAINING APPEALS, BEING, ITA NO. 2268 & 2269/KOL/2018, CASE OF FORMER ASSESSEE AND IN CASE OF LATTER ASSESSEES IN ITA NO.205/KOL/2018, FOR A.Y. 2014-15, AS IT TRANSPIRES THAT THERE ARE COMMON AND IDENTICAL ISSUES ARE INVOLVED IN THESE TWO ASSESSEES RELATING TO THE SAME GROUP. WE FURTHER NOTE THAT THE RELEVAN T SCRIPS IN ISSUE WERE KAILASH AUTO FINANCE LTD, LIFELINE DRUGS & PHARMA LTD, AND ENIS EDUTECH, IN ITA 2270/KOL/2018, SAME AS IS THE LEAD CASE.WE NOTE T HAT IN SANJIB KUMAR PATWARI (HUF), IN ITA 205/KOL/2018, THE RELEVANT SCRIPS WER E,KAILASH AUTO FINANCE LTD, LIFELINE DRUGS & PHARMA LTD, WHICH ARE EXACTLY IDEN TICAL& COMMON AND SCRIPS OF M/S NCL RESEARCH &FINANCIAL SERVICES AND ESSAR INDI A LIMITED WERE ALSO SHRI SANJAY KUMAR& SANJIB KUMAR PATWARI ITA NOS.2268-2270& 205/KOL/2018 A.YS:12-13 TO 13-14 & 15-16 P PP PA AA AG GG GE EE E | || | 4 44 43 33 3 COVERED BY THE IDENTICAL FACTS AND ISSUES BY OUR TH IS ORDER AND OTHER ORDERS OF THE COORDINATE BENCHES. WE ADOPT THE PRECEDING DETAILED REASONING MUTATIS MUTANDIS TO DELETE ALL THE CORRESPONDING LONG TERM CAPITAL G AIN(LTCG) ADDITION HEREINABOVE. 29. IN THE RESULT, ALL THEFOUR APPEALS OF THE ASSES SEES, IN ITA NO.2268 TO 2270/KOL/2018 AND ITA 205/KOL/2018 ARE ALLOWED. A C OPY OF THIS ORDER BE PLACED IN THE RESPECTIVE CASE FILES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 08.05.2019. SD/- (S.S.GODARA) SD/- (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER DATED 08/05/2019 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. SHRI SANJAY KUMAR PATWARI (HUF) & SHRI SANJIB KUMAR PATWARI (HUF) 2. ACIT, CIRCLE-22, KOLKATA & ACIT, CIRCLE-36, KO LKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES