Anil Bajpai , Hooghly V. ITO, Ward - 23(2) , Hooghly

ITA 2385/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7557 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-07-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 16-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NICHOLAS MURMU CITSRDR
• Assessee Lawyers: K M RAI
• Keywords: Unexplained cash credit; Business income; Share purchase agreement; Opportunity of being heard; Corroborative evidences; Accommodation entries; Penny stocks; Set aside
• Section: 250; 68; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.318/KOL/2019 ASSESSMENT YEAR:2014-15 PREM BALA PUROHIT FLAT NO.6B, BLOCK-8, P.S. MAGNUM, VIP ROAD, KOLKATA-700052 [ PAN NO. AFNPP 6137 R ] / V/S . INCOME TAX OFFICER WARD-62(2), 169, AJC BOSE ROAD, KOLKATA-14 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI K.M.RAI, FCA /BY RESPONDENT SHRI NICHOLAS MURMU, ADDL. CIT-SR-DR /DATE OF HEARING 18-07-2019 ITA NO.322/KOL/2019 ASSESSMENT YEAR:2015-16 SHRI PRAMOD KUMAR AGRAWAL, BLOCK-3, FLAT-6C, AVANI OXFORD, 136, JESSORE ROAD, LAKE TOWN, KOLKATA-700055 [ PAN NO. ACGPA 6168 D ] / V/S . INCOME TAX OFFICER WARD-22(4), 54/1 RAFI AHMED KIDWAI ROAD, 4 TH FLOOR, KOLKAT-16 /APPELLANT .. /RESPONDENT ITA NO.379/KOL/2019 ASSESSMENT YEAR:2014-15 M/S JIVENDRA MISHRA, HUF, 85, NETAJI SUBHASH ROAD, ROOM NO.311, 3 RD FLOOR, KOLKATA-700001 [ PAN NO. AABHJ 8836 J ] / V/S . INCOME TAX OFFICER WARD-35(2), POORVA 110, SHANTI PALLY, KOLKATA-107 /APPELLANT .. /RESPONDENT PAGE 2 /BY ASSESSEE SHRI SUNIL SURANA, FCA /BY RESPONDENT SHRI NICHALAS MURMU, ADDL. CIT-SR-DR /DATE OF HEARING 18-07-2019 ITA NO.406/KOL/2019 ASSESSMENT YEAR:2014-15 NARESH CHAND CHANDAK L/H KUSUM CHANDAK, 8 TH FLOOR, 9, INDIA EXCHANGE PLACE, KOLKATA-700001 [ PAN NO. ACOPC 4288 N ] / V/S . INCOME TAX OFFICER WARD-35(3), AAYAKAR BHAVAN POORVA, 110 SHANTIPALLY KOLKATA-108 /APPELLANT .. /RESPONDENT ITA NO.2384-2385/KOL/2018 ASSESSMENT YEARS: 2013-14 & 2014-15 ANIL BAJPAI 72, BBD ROAD, HINDMOTOR, HOOGHLY-712233 [ PAN NO.AGFPB 7835 F ] / V/S . INCOME TAX OFFICER WARD-23(2), AAYAKAR BHAWAN, G.T. ROAD, KHADINA MORE, DIST. HOOGHLY-712101 /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI MIRAJ D SHAH, ADVOCATE /BY RESPONDENT SHRI NICHALAS MURMU, ADDL. CIT-SR-DR /DATE OF HEARING 18-07-2019 ITA NO.2573/KOL/2018 ASSESSMENT YEAR: 2015-16 DR. DINESH KUMAR HAWELIA C/O ALL INDIA ROAD TRANSPORT AGENCY, 28, BLACK BURN LANE, 5 TH FLOOR, KOLKATA-12 [ PAN NO.AAQPH 3267 E ] / V/S . INCOME TAX OFFICER WARD-22(1), 54/1 RAFI AHMED KIDWAI ROAD, KOLKAT-16 PAGE 3 /APPELLANT .. /RESPONDENT ITA NO.166/KOL/2019 ASSESSMENT YEAR: 2012-13 JAI PRAKASH GUPTA ROOM NO.18, 1 ST FLOR,KRISHNA SADAN, 26, P.K. TAGORE STREET, JORABAGAN, KOLKATA-06 [ PAN NO.AGJPG 5316 J ] / V/S . INCOME TAX OFFICER WARD-37(1), 54/1 RAFI AHMED KIDWAI ROAD, KOLKAT-16 /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI SUBHAS AGARWAL, ADVOCATE /BY RESPONDENT SHRI NICHALAS MURMU, ADDL. CIT-SR-DR /DATE OF HEARING 18-07-2019 ITA NO.2547/KOL/2018 ASSESSMENT YEAR: 2015-16 ROHIT BANSAL FLAT NO.1A, CHITRALEKHA APARTMENT, 15A, BALLYGUNGE PARK ROAD, KOLKATA-19 [ PAN NO.ADPPB 3060 P ] / V/S . DCIT, (IT),CIRCLE-2(1), AAYKAR BHAWAN POORVA KOLKATA-107 /APPELLANT .. /RESPONDENT /BY APPELLANT NONE /BY RESPONDENT SHRI NICHOLAS MURMU, ADDL. CIT-SR-DR /DATE OF HEARING 18-07-2019 ITA NO.309/KOL/2019 ASSESSMENT YEAR: 2015-16 ROHIT AGARWAL C/O M.M.MURARKA & CO. 7, LYONS RANGE, LAL BAZAR, KOLKATA-700 001 [ PAN NO.AEZPA 3217 R ] / V/S . INCOME TAX OFFICER WARD-62(3), BAMBOOVILLA, 169 AJC BOSE ROAD, KOLKATA PAGE 4 /APPELLANT .. /RESPONDENT /BY APPELLANT NONE /BY RESPONDENT SHRI NICHOLAS MURMU, ADDL. CIT-SR-DR /DATE OF HEARING 18-07-2019 ITA NO.2560/KOL/2018 ASSESSMENT YEAR: 2015-16 PAWAN KUMAR TOSHNIWAL (HUF), KAILASH APARTMENT 174/15 NSC BOSE ROAD, 4 TH FLOOR, AZADGARH P.O. KOLKATA-40 [ PAN NO.AAIHP 2504 E ] / V/S . INCOME TAX OFFICER, WARD-25(1), 2, GARIAHAT ROAD, (S), 1 ST FLOOR, KOLKATA-68 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI S.K. KEJARIWAL, CA /BY RESPONDENT SHRI NICHOLAS MURMU, ADDL. CIT-SR-DR /DATE OF HEARING 18-07-2019 ITA NO.2611/KOL/2018 ASSESSMENT YEAR: 2014-15 SANDEEP DIDWANIA 143/1, COTTON STREET 2 ND FLOOR, KOLKATA-07 [ PAN NO.ACXPD 6100 D ] / V/S . INCOME TAX OFFICER, WARD-45(2), 3, GOVERNMENT PLACE (WEST), KOLKATA-001 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI A.K. TIBRIWAL, FCA /BY RESPONDENT SHRI NICHOLAS MURMU, ADDL. CIT-SR-DR /DATE OF HEARING 18-07-2019 PAGE 5 ITA NO.149/KOL/2019 ASSESSMENT YEAR: 2015-16 DR. ARUP KUMAR AGARWALA 34/44A, BANDH ROAD, ABHIRAMPUR, MOKDUMPUR, MALDA SARDAR, MALDA- 732103 [ PAN NO.ACXPA 2485 J ] / V/S . INCOME TAX OFFICER, WARD-22(1), 54/1, RAFI AHMED KIDWAI ROAD, KOLKATA-16 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI V.N.PROHIT, FCA /BY RESPONDENT SHRI NICHOLAS MURMU, ADDL. CIT-SR-DR /DATE OF HEARING 18-07-2019 /DATE OF PRONOUNCEMENT 19-07-2019 /O R D E R THESE ASSESSEES HAVE FILED THEIR INSTANT APPEALS INVOLVING DIFFERENT ASSESSMENT YEAR(S) I.E. 2014-15, 2015-16, 2013-14 AND 2012-13 AGAINST THE RESPECTIVE COMMISSIONER OF INCOME-TAX (APPEALS) SEPARATE ORDE R(S) AFFIRMING THE ASSESSING OFFICER(S) IDENTICAL ACTION TREATING VARYING SUMS O F LONG TERM CAPITAL GAINS (LTCG) / LONG/SHORT TERM CAPITAL LOSS (LTCL); AS THE CASE MAY BE AS INVOLVING UNEXPLAINED CASH CREDITS U/S 68, INVOLVING PROCEEDINGS U/S 143( 3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. CASE(S) CALLED TWICE IN FORMER APPEAL(S) ITA NO.254 7/KOL/2018 & ITA NO.309/KOL/2019. NONE APPEAR AT THE RESPECTIVE ASSE SSEES BEHEST. IT IS THEREFORE PROCEED EX PARTE . THE CASES ARE NOW TAKEN UP ADJUDICATION ON MERITS . 2. I HAVE HEARD THESE APPEAL(S) TOGETHER OF THE FAC T THAT THE SOLE IDENTICAL ISSUE RAISED IN THE INSTANT ENTIRE BATCH IS THAT OF GENUI NENESS OF ASSESSEES LTCG/LTCL, AS THE CASE MAY BE, DERIVED FROM SALE OF SHARES HELD I N VARIOUS SCRIPS. IT IS IN THIS PAGE 6 IDENTICAL BACKDROP THAT I AM TREATING ITA NO.309/KOL/2019 IN CASE OF ROHIT AGARWAL VS. ITO WD-62(3), KOLKATA FOR ASSESSMENT YEAR 2015-16 AS THE LEAD CASE. 3. BOTH THE LEARNED REPRESENTATIVE(S) TAKE ME TO CI T(A)S DETAILED DISCUSSION WHILST TREATING THE IMPUGNED STCL PRE-ARRANGED BOGU S LOSS IN THE INSTANT LEAD CASE VIDE THE FOLLOWING LOWER APPELLATE DISCUSSION:- 3.1 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORD ER WHEREIN THE ADDITION OF RS. 14,70,324/- HAS BEEN MADE BY THE A.O. ON ACCOUNT OF BOGUS LONG TERM CAPITAL GAIN. I FIND THAT THE A.O. AT THE TIME OF COMPLETION OF THE ASSESSMENT PROCEED INGS HAS FRAMED THE ASSESSMENT AFTER ANALYZING VARIOUS INFORMATION RECEIVED FROM THE INV ESTIGATION WING. SOME OF THE OBSERVATIONS WHICH COME TO LIGHT UPON EXAMINATION O F THE RECORDS OF THE APPELLANT ARE AS BELOW:- A. THERE IS A COMMON PATTERN IN THE TRADING OF SUCH SCRIPTS AND THE PATTERN IS THAT THEY REPRESENT A BELL SHAPE IN THEIR TRADING. B. FROM BALANCE SHEET OF THE LISTED PENNY STOCKS IT IS FOUND THAT THEY HAVE NO ACTUAL FINANCIAL CREDENTIALS TO SUPPORT THEIR SHARE MOVEME NT PATTERN. ALMOST ALL THE COMPANIES HAVE NO FIXED ASSETS, NO TURNOVER, NO PRO FITABILITY. THE BASIC FINANCIAL FUNDAMENTAL OF THE PENNY STOCK COMPANY HAS BEEN DIS CUSSED IN THE ASSESSMENT ORDER. C. NO SUCH EVENT OF GROWTH HAPPENED FOR WHICH PRICE OF SHARE COULD HAVE JUMPED SEVERAL TIMES OF ITS PURCHASE VALUE EVEN WITHOUT SO UND FINANCIALS. PRESENTLY, THESE SHARES ARE BEING TRADED FOR RE. 0.92. D. IN THE WHOLE PROJECT TOTAL 84 LISTED PENNY STOCK COMPANIES WERE IDENTIFIED AND WORKED UPON. AFTER THAT, NUMBER P AND SURVEYS WERE CONDUCTED IN THE OFFICE PREMISES OF MORE THAN 32 SHARE BRAKING ENTITIES WHO HAVE ACCEPTED THAT THEY WERE INVOLVED IN THE BOGUS LTCG/STCL SEAM. SURVEYS WERE ALSO CONDUCTED IN THE OFFICE PREMISES OF MANY ACCOMMODATION ENTRY PROVIDERS AND THEIR STATEMENTS RECORDED. ALL HAVE ACCEPTED THEIR ROLE IN THE SEAM. E. OUT OF 84 LISTED PENNY STOCKS WHICH HAVE BEEN US ED FOR GENERATING BOGUS LTCG, M/S CRESSANDA SOLUTION LTD. WHICH HAD BEEN SOLD BY THE PRESENT ASSESSEE, IS ONE OF THEM. 3.2 A DEEPER EXAMINATION OF THE PAPER BOOK FILED BY THE APPELLANT GIVES A MUCH CLEAR PICTURE OF THE ENTIRE PROCESS BEING STAGED MANAGED. THE MOS T VITAL ASPECT TO BE CONSIDERED IS WHAT PROMPTED HIM TO MAKE A DECISION FOR INVESTMENT IN T HIS COMPANY. ON PERUSAL OF THE DETAILS OF INVESTMENT MADE BY THE APPELLANT, IT IS EVIDENT THA T THE APPELLANT MOSTLY MADE INVESTMENT IN RENOWNED COMPANIES AND MUTUAL FUNDS. THEREFORE, THE INVESTMENT MADE BY THE APPELLANT IN SUCH A COMPANY WHICH DOES NOT HAVE ANY CREDENTIALS, DOES NOT MATCH WITH THE NATURE OF INVESTMENT OF THE APPELLANT. 3.3 I HAVE ALSO PERUSED ALL THE SUBMISSIONS MADE BY THE APPELLANT DURING THE COURSE OF APPEAL PROCEEDINGS ALONGWITH THE SUPPORTING EVIDENCES. THE MAIN CONTENTION OF THE APPELLANT THAT ALL THE SUPPORTING EVIDENCES IN THE FORM OF BANK STATEM ENT, CONTRACT NOTES, DELIVERY INSTRUCTION PROVES THE GENUINENESS OF THE TRANSACTIONS. IN MY V IEW, ALL THESE DOCUMENTS AS REFERRED TO BY THE APPELLANT ARE MERE DOCUMENTS AND NOT ANY EVIDEN CE. THE WHOLE TRANSACTIONS ARE NOT NATURAL AT ALL. IN MY OPINION, PAYMENT MADE THROUGH BANKING CHANNEL DOES NOT CONSTITUTE THE TRANSACTIONS TO BE GENUINE TRANSACTION SINCE THE BA NKING DOCUMENTS ARE MERELY SELF SERVING RECITALS. NONE OF THE MATERIAL PRODUCED BY THE APPE LLANT IS ENOUGH TO JUSTIFY THE HUGE LOSS AS CLAIMED UNDER THE HEAD CAPITAL GAIN. PAGE 7 3.4 IN A PENNY STOCK WHICH HAS NO BUSINESS ACTIVITY OR ANY PLAN OR INITIATIVE OR ANY PROSPECT FOR GROWTH, INVESTORS NORMALLY SELL OFF SUCH STOCK WHENEVER PRICE HAS APPRECIATED TO SOME EXTENT AND THERE IS TOTAL UNCERTAINTY TO HOLD SUCH STOCK FOR FABULOUS APPRECIATION WHEN THE INVESTMENT IS NOT BACKED BY ANY FUNDAMENTAL OF THE COMPANY, ITS BUSINESS POLICY AND FUTURE PROSPECT. IN ABSENCE OF ANY SUCH FACT THE PERSON WH O IS SURE FOR HUGE APPRECIATION IN VALUE OF SUCH STOCK IS PROBABLY THE PERSON WHO KNOWS BEFOREH AND THAT ITS PRICE IS BEING MANIPULATED IN A CONCERTED WAY AND HE IS PART OF SUCH SYSTEM. PRIC E MOVEMENT AND VOLUME MOVEMENT OF THIS STOCK INDICATES SUCH FACT. THIS DEFIES ALL LOGIC OF HUMAN PROBABILITY. IN THIS CONTEXT THE HON 'BLE SUPREME COURT IN THE CASE OF CIT VS. DURGA PRA SAD MORE (82 ITR 540) HAS HELD THAT THE SURROUNDING CIRCUMSTANCES MUST BE SEEN TO FIND OUT THE REALITY OF THE RECITALS MADE IN THE DOCUMENT. THIS PRINCIPLE WAS REAFFIRMED BY THE HORI 'BLE SUPREME COURT IN 214 ITR 801 WHERE IN IT WAS HELD THAT THE APPARENT CAN BE REJECTED WH ERE THERE ARE REASONS TO BELIEVE THAT THE APPARENT IS NOT THE REAL FACT. 3.5 I AM OF THE OPINION THAT THE A.O. CORRECTLY HEL D THE TRANSACTIONS RELATING TO LONG TERM CAPITAL GAIN TO FALL IN THE REALM OF ' SUSPICIOUS ' AND ' DUBIOUS ' TRANSACTIONS. IN THE INSTANT CASE, THE A.O. COMPLETED THE ASSESSMENT VERY METICU LOUSLY AFTER CONSIDERING THE SURROUNDING CIRCUMSTANCES. 3.6 I FIND ALL THE JUDGMENTS RELIED UPON BY THE APP ELLANT FALL FLAT IN THE FACE OF THE FACTS OF THE CASE AND THE PREPONDERANCE OF PROBABILITY AGAINST T HE ASSESSEE. RECENTLY, THE BOMBAY HIGH COURT IN THE CASE OF SANJOY BIMALCHAND JAIN VS. PR. CIT, VIDE AN ORDER DATED 10.04.2017 HELD THAT THE ASSESSEE HAD INDULGED IN A DUBIOUS SHARE T RANSACTION MEANT TO ACCOUNT FOR THE UNDISCLOSED INCOME IN THE GARB OF LONG TERM CAPITAL GAIN SINCE THE ASSESSEE HAS NOT TENDERED COGENT EVIDENCE TO EXPLAIN HOW THE PRICE OF SHARES OF A UNKNOWN COMPANY HAS JUMPED IN NO TIME. I ALSO PLACE RELIANCE ON THE FOLLOWING JUDGEM ENTS WHICH ARE RELEVANT:- 1. CHANDAN GUPTA VS CIT[2015] S4 TAXMANN.COM 10 (PU NJAB & HARYANA)/[2015] 229 TAXMAN 173 HONBLE PUNJAB & HARYANA HIGH COURT HELD THAT WHERE ASSESSEE COULD NOT EXPLAIN RECEIPT OF ALLEGED SHARE TRANSACTION PROFITS CREDITED IN HIS B ANK ACCOUNTS, THEN SALE PROCEEDS HAD TO BE ADDED AS INCOME UNDER SECTION 68. 2. USHA CHANDRESH SHAH VS ITO[2014-TIOL-1459-ITAT-M UM] WHERE HON'BLE ITAT MUMBAI HELD THAT IN CASE THE ASS ESSEE COULD NOT PRODUCE THE COPIES OF SHARE CERTIFICATES AND COPIES OF SHARE TR ANSFER FORMS. THE TRANSACTION OF PURCHASE OF SHARES COULD NOT BE CROSS VERIFIED. THE SHARES OF THE COMPANY WAS DECLARED AS 'PENNY STOCK' BY SEB! AND THE BROKER SA NJU KABRA, THROUGH WHOM THE SHARES WERE SOLD BY THE ASSESSEE WAS INDICTED FOR M ANIPULATING THE PRICES OF PENNY STOCK SHARES. THE TAX AUTHORITIES HAVE RIGHTLY APPL IED THE TEST OF HUMAN PROBABILITIES TO EXAMINE THE CLAIM OF PURCHASE AND SALE OF SHARES MADE BY THE ASSESSEE. THE CIT(A) WAS JUSTIFIED IN CONFIRMING THE ORDER OF THE AO BY APPLYING THE TEST OF HUMAN PROBABILITIES. 3. ITAT BANGALORE, 'SMC-C' BENCH. ITA NO.1723/BANG/ 2018, A.Y.- 2015-16, SMT. M.K. RAJESHWARI VS. INCOME TAX OFFICER, WARD-3, RAICHUR, DATE-12.10.2018, IN PARA NO. 8 & 9 OF THE ORDER AS UNDER:- THE A.O HAS ALSO EXAMINED THE SEBI'S FINDINGS ABOUT THE ACCOMMODATION ENTRY PROVIDERS OBTAINED ON THE BASIS OF VARIOUS INVESTIG ATIONS AND HAS BROUGHT OUT SUFFICIENT MATERIAL ON RECORD TO DEMONSTRATE THAT T HE TRANSACTIONS ARE NOT GENUINE AND HE ACCORDINGLY CONCLUDED THAT THE LONG TERM CAPITAL GAIN BOOKED BY THE ASSESSEE IN THE BOOKS WERE PRE-ARRANGED METHOD TO EVADE TAXES AND L AUNDERED MONEY. THE FINDINGS AND OBSERVATIONS OF THE AO WERE NOT CONTROVERTED BY THE ASSESSEE BY PLACING ANY EVIDENCE. HE PLACED RELIANCE UPON THE VARIOUS JUDIC IAL PRONOUNCEMENTS IN SUPPORT OF PAGE 8 HIS CONTENTION THAT ONCE THE ASSESSEE HAS PLACED TH E EVIDENCES WITH REGARD TO PAYMENTS AND THE IDENTITY OF THE PERSONS AND THE CR EDIT WORTHINESS OF THE CREDITORS, NO ADDITION UNDER SECTION 68 IS CALLED FOR. SINCE THE ASSESSEE HAS PLACED THE CONTRACT NOTE, PAYMENT THROUGH CHEQUES IDENTIFYING THE COMPANY WHO SE SHARES WERE TRANSACTED, THE GENUINENESS OF CLAIM OF LONG TERM CAPITAL GAIN SHOU LD NOT HAVE BEEN DOUBTED. WE DO NOT FIND MERIT IN THESE CONTENTIONS OF THE ASSESSEE IN THE LIGHT OF THE FACTS THAT THERE IS PREVALENT PRACTICE IN THE COUNTRY THROUGH WHICH UNA CCOUNTED MONEY IS CONVERTED INTO LONG TERM CAPITAL GAIN BY CIRCUITOUS MEANS. WHILE D EALING WITH THE ISSUE OF LONG TERM CAPITAL GAIN ACCRUED TO THE ASSESSEE IN SHORT SPAN, ONE HAS TO EXAMINE THE FINANCIALS OF THE COMPANY WHOSE SHARES WERE INFLATED WITHIN A SHO RT PERIOD AND AFTER THE SHARP RISE IN THE PRICE OF SHARES IT AGAIN COMES DOWN. IN THE INSTANT CASE, FINANCIALS WERE EXAMINED BY US AND WE FIND THAT THE FINANCIAL WORTH OF THE COMPANY IS MEAGRE AND NOT AT ALL WORTH TO BE INVESTED THEREIN. WITH SUCH FINANCIALS, WE ARE UNABLE TO UNDERSTAND HOW THERE CAN BE MANIFOLD INCREASE IN TH E SHARES. IN THE LIGHT OF THE DURATION OF TRANSACTIONS AND THE FINANCIALS OF THE COMPANY WHOSE SHARES WERE TRANSACTED, WE FIND THAT THE REVENUE HAS BROUGHT SU FFICIENT MATERIAL ON RECORD TO DEMONSTRATE THAT UNACCOUNTED MONEY WAS INTRODUCED I N THE BOOKS OF ACCOUNTS THROUGH LONG TERM CAPITAL GAIN BY ADOPTING SUCH MET HOD. WHATEVER JUDICIAL PRONOUNCEMENTS ARE RELIED ON, THESE ARE IN THOSE CA SES WHERE THE TRANSACTIONS ARE GENUINE. UNDER THESE CIRCUMSTANCES, WE ARE OF THE V IEW THAT REVENUE AUTHORITIES HAVE RIGHTLY ADJUDICATED THE ISSUE AND NO INTERFERENCE I S CALLED FOR IN THE ORDER OF THE CIT(A). 9. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS DIS MISSED. 4. ITAT, CHENNAI A-BENCH, ITA NO. 1413/CHNY/2018 , A.Y. 2014-15 IN M/S PANKAJ AGARWAL & SONS (HUF) -VS- ITO, NON- CORPORATE WARD- 10(3) CHANNAI, DATED 06-12-2018 HAS HELD AT PARA 7 & 8. '7. BEFORE US THE LD.AR SUBMITTED THAT THE ASSESSEE S WERE NOT PROVIDED WITH AN OPPORTUNITY TO CROSS-EXAMINE THE WITNESS WHO WERE R ELIED BY THE REVENUE AND FURTHER FAILED TO FURNISH THE INVESTIGATION REPORT OF THE I NTELLIGENCE WING OF THE REVENUE BEFORE CONCLUDING THE ASSESSMENT. THE LD.AR FURTHER ARGUED THAT THE ASSESSEES WERE NOT PROVIDED WITH PROPER OPPORTUNITY OF BEING HEARD . IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF LD.AO FO R FRESH CONSIDERATION. THE LD. DR STRONGLY OPPOSED TO THE SUBMISSION OF THE LD.AR AND REQUESTED FOR CONFIRMING THE ORDERS OF THE LD. REVENUE AUTHORITIES. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE MATERIALS ON RECORD. AT THE OUTSET WE MUST SAY THAT THE LD.AR COULD NOT JUSTIFY BEFORE US ANY OF THEIR CLAIMS MADE BEFORE THE LD. REVENUE AUTHORITIES THAT THE- TRANSACTION WAS GENUINE. FURTHER THE LD.AR COULD NOT SUCCESSFULLY CONTROVERT TO ANY OF THE FINDINGS OF THE LD. REVENUE AUTHORITIES BEFORE US WHICH ARE AGAINST THE ASSESSEES. INSTEAD THE LD.AR HAS ONLY COME OUT WITH THE PLEA THAT THE ASSESSEES WERE NOT PROVIDED WITH OPPORTUNITY OF CROSS-EXAMINING THE WITNESS, THE INVESTIGATION REPO RT WAS NOT FURNISHED AND PROPER OPPORTUNITY WAS NOT PROVIDED OF BEING HEARD. HOWEVE R WE FIND THAT ALL THESE ARGUMENTS RAISED BY THE LD.AR BEFORE US WAS NEVER A LLEGED BEFORE THE LD. REVENUE AUTHORITIES WHEN THE MATTER WAS BEFORE THEM. IN THI S SITUATION WE DO NOT HAVE ANY OTHER OPTION BUT TO CONFIRM THE ORDERS OF THE LD. R EVENUE AUTHORITIES IN THE CASE OF ALL THE ASSESSEES BECAUSE THE LD.AO AS WELL AS THE LD.CIT(A) HAVE ARRIVED AT THEIR RESPECTIVE DECISIONS AFTER CONSIDERING THE ISSUES I N THE APPEAL IN DETAIL AND THERE IS NOTHING BEFORE US TO DISTURB THEIR FINDINGS. ACCORD INGLY WE HEREBY CONFIRM THE ORDER OF THE LD. REVENUE AUTHORITIES ON THIS ISSUE. THUS THE FIRST GROUND RAISED BY THE ASSESSEES HEREIN ABOVE IN ALL THE APPEALS ARE HELD AGAINST THE ASSESSEES. 5. THE LATEST ORDER DATED 08-01-2019 PASSED BY THE ITAT DELHI 'SMC' BENCH, NEW DELHI, ITA NO.3810/DEL/2018, A.Y.-201S-16 IN ANJU RASTOGI VS. ITO, WARD 1(1), MEERUT DATED 08-01-2019 HAS HELD AT PARA 7 TO 9. PAGE 9 7. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS ESPECIALLY THE IMPUGNED ORDER. I NOTE THAT THE ASSESSEE HAS SHOWN LONG TERM CAPITAL GAIN AMOUNTING TO RS.22,28,172/- EARNED DURING THE FY 2014-15 AND EXE MPT U/S. 10(38) OF THE 1. T. ACT, 1961. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF AFORESAID LONG TERM CAPITAL GAIN DURING THE COURSE OF SCRUTINY PROCEEDINGS. THE EXPLANATION OFFERED THAT IT IS SALE PROCEEDS OF SHARES ARE FOUND TO BE UNSATISFACTORY. THE EXPLANATION OF THE ASSESSEE IS GENERAL IN NATURE THAT AS THE TRANSACTION IS THROUG H STOCK EXCHANGE AND THE PAYMENT IS BY CHEQUE, THE TRANSACTIONS SHOULD BE TREATED AS GE NUINE. FURTHER, REGARDING THE STATEMENT OF SH. JAI KISHARI PODDAR THE ASSESSEE HA S ONLY STATED THAT IN THE STATEMENT THERE IS NO SPECIFIC LINK WITH THE CLAIM OF EXEMPTI ON IN RESPECT OF LONG TERM CAPITAL GAIN OF RS. 22,78,172/- U/ S. 10(38) BY HIM. HE HAS NOT STATED A THING WITH RESPECT TO THE STATEMENT OF SH. JAI KISHAN. PODDAR IN WHICH HE HAS ACCEPTED THAT FACILITATION OF ACCOMMODATION ENTRIES OF LONG TERM CAPITAL GAIN / L ONG TERM CAPITAL LOSS .THROUGH HIS SHARE BANKING FIRM. HAS BEEN DONE TO FEW BENEFICIAR IES WITH THE HELP OF DIFFERENT ACCOMMODATION ENTRY OPERATORS, PROMOTERS OF THE SCR IPTS OF VARIOUS PENNY STOCKS OTHER BROKERS ETC. SH. JAI KISHAN PODDAR ALSO GAVE DETAILS OF DIFFERENT BOGUS SCRIPTS/ PENNY STOCKS WHICH HAVE BEEN USED FOR PROVIDING THE ACCOMMODATION ENTRIES OF LTCG AND LTCL TO DIFFERENT BENEFICIARIES USING HIS BROKERAGE COMPANY CONSORTIUM CAPITAL PVT. LTD. AND THE NAME OF CCL INTERNATIONAL LIMITED HAVING SCRIP NAME CCL INTER APPEARS IN THE LIST WHOSE SHARES WERE SOLD BY THE ASSESSEE AND EXEMPTION ON LTCG AMOUNTING TO RS. 22,28,172/- CLAIMED U/ S. 10( 38) OF THE ACT. AFTER PERUSING THE RECORDS, I FIND THAT IN THE INSTANT CASE THE IN VESTMENT IN SHARES MADE BY THE ASSESSEE REVEALS THAT HE HAS NOT BEEN DEALING IN SH ARES ON A REGULAR BASIS AND THE ENTRIES OF LTCG HAVE ALSO BEEN TAKEN BY OTHER MEMBE RS OF THE ASSESSEE COMPANY AND THE PURCHASE OF THESE SHARES WERE CLAIMED TO BE THR OUGH OFF MARKET DEALS AND NOT THROUGH STOCK EXCHANGE. THE FINANCIALS OF PENNY STO CK COMPANY M/S CCL INTERNATIONAL LTD. AND MOVEMENT OF ITS PRICE ARE AB RUPT, UNREALISTIC AND BASED UPON ANY REALISTIC PARAMETERS. FROM THE PERUSAL OF FINAN CIAL STATEMENTS OF THE AFORESAID COMPANY M/ S CCL INTERNATIONAL LTD. FROM THE MINIST RY OF CORPORATE AFFAIRS WEBSITE (MCA) EXAMINING THE INFORMATION. AVAILABLE IN THE P UBLIC DOMAIN FROM WHERE IT WAS OBSERVED THAT THERE IS NO EXTRAORDINARY INCREASE IN THE PROFITS OF THE COMPANY TO JUSTIFY THE INCREASE IN VALUE OF THE SHARES. I FURT HER NOTE THAT INVESTIGATION WING HAD RECORDED THE STATEMENT OF SH. JAI KISHAN PODDAR WHO IS ONE OF THE DIRECTOR OF M/ S CONSORTIUM CAPITAL PVT. LTD. WHCIH IS ONE OF THE EN TITIES UTILISED FOR PROVIDING ENTRY OF BOGUS LONG TERM CAPITAL GAIN OF M/ S CCL INTERNA TIONAL LTD. WHO HAD ADMITTED THAT HE WAS INVOLVED IN SCAM OF PROVIDING BOGUS LONG TER M CAPITAL GAINS THROUGH SHARES OF M/ S CCL INTERNATIONAL LTD. HAD ALSO ADMITTED THAT THEY WERE ALSO INVOLVED IN TRADING OF THESE JAMAKHARCHI COMPANIES THROUGH WHICH MANIPU LATIVE TRANSACTIONS IN SECURITIES TO EITHER ARTIFICIALLY RAISE OR LOWER TH E MARKET RATE OF THE SHARES ARE BEING DONE. I ALSO NOTE THAT THE INDEPENDENT FINDINGS OF THE AO, WHICH. ARE CORROBORATED BY THE INFORMATION GIVEN BY THE INVESTIGATION WING, TH E ASSESSEE HAS FAILED TO SUBSTANTIATE THE GENUINENESS OF ALLEGED SHARE TRANS ACTIONS: IN RESPECT O] LONG TERM. CAPITAL GAIN U/S.10(38) OF THE ACT. IN VIEW OF ABOV E DISCUSSIONS, THE LANDMARK; DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F MCDOWELL AND COMPANY LIMITED, 154 ITR 148 ARE SQUARELY APPLICABLE IN THI S CASE WHEREIN IT HAS BEEN HELD THAT TAX PLANNING MAY BE LEGITIMATE PROVIDED IT IS WITHIN THE FRAMEWORK OF THE LAW AND ANY COLOURABLE DEVICES CANNOT HE PART OF TAX PL ANNING AND IT IS WRONG TO ENCOURAGE OR ENTERTAIN THE BELIEF THAT IT IS HONOUR ABLE TO AVOID THE PAYMENT OF TAX BY DUBIOUS METHODS. HOWEVER, THE CASE LAWS CITED BY TH E LD. COUNSEL FOR THE ASSESSEE ARE ON DISTINGUISHED FACTS, HENCE, NOT APPLICABLE I N THE INSTANT CASE. THE ASSESSEE HAS NOT ARGUED ANY OTHER GROUND MENTIONED IN THE GROUND S OF APPEAL, BUT ONLY ARGUED ON MERIT FOR WHICH ASSESSEE HAS FAILED TO SUBSTANTIATE HIS CLAIM BEFORE THE LOWER REVENUE AUTHORITIES US WELL AS BEFORE THIS BENCH. IN VIEW O F ABOVE DISCUSSIONS, I AM OF THE CONSIDERED OPINION THAT LD. CIT(A) HAS RIGHTLY CONF IRMED THE ADDITION IN DISPUTE, WHICH DOES NOT. NEED ANY INTERFERENCE ON MY PORT, T HEREFORE. I UPHOLD THE ACTION OF THE PAGE 10 LD. CIT(A) ON THE ISSUE IN DISPUTE AND REJECT THE G ROUNDS RAISED BY THE ASSESSEE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED . 8. SINCE IN OTHER APPEAL I.E. IN THE CASE OF ANJU R USTOGI, ITA NO. 3810/DEL/2018 (AY. 2015-16), SIMILAR FACTS ARE PERMEATING AND SAME FIN DING HAS BEEN GIVEN, THEREFORE, MY FINDING GIVEN ABOVE WILL APPLY MUTATIS MUTANDIS IN THIS (APPEAL ALSO, BECAU.SE THE NATURE OF TRANSACTIONS, EVIDENCES AND DOCUMENTS ORE EXACTLY THE SAME, THUS, BOTH THE APPEALS ARE TREATED AS DISMISSED . 9. IN THE RESULT, BOTH. THE APPEALS OF THE DIFFEREN T ASSESSEES ARE DISMISSED. ' 3.7 IN VIEW OF THE ABOVE DISCUSSION, I FIND NO INFI RMITY IN THE ORDER OF THE AO. AND I CONFIRM THE ACTION OF THE A.O. IN HOLDING THE LONG TERM CAP ITAL GAIN OF RS. 14,70,324/- TO BE BOGUS GROUNDS NO. 1 TO 2 ARE DISMISSED . 4. I HAVE GIVEN MY THOUGHTFUL CONSIDERATION TO RIVA L CONTENTIONS. LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTS BOT H THE LOWER AUTHORITIES IDENTICAL ACTION HOLDING THE ASSESSEES STCL AS BOGUS SINCE D ERIVED FROM RIGGING OF THE SCRIP PRICES IN ISSUE AND INVOLVING ACCOMMODATION ENTRY I N COLLUSION WITH THE CONCERNED ENTRY OPERATORS. HON'BLE APEX COURTS DECISIONS IN SUMATI DAYAL VS. CIT (1995) 80 TAXMANN.89/214 ITR 801 (SC) AND CIT VS. DURGA PRASAD MORE (1971) 82 ITR 540 (SC) ARE QUOTED BEFORE ME DURING THE COURSE OF HEAR ING AT THE REVENUES BEHEST. IT STRONGLY ARGUES THAT THE DEPARTMENT HAS DISALLOWED/ ADDED THE IMPUGNED STCL BASED ON CIRCUMSTANTIAL EVIDENCE UNEARTHED AFTER A SERIES OF SEARCH ACTIONS / INVESTIGATIONS UNDERTAKEN BY THE DDIT(INV). I FIND NO MERIT IN REV ENUES INSTANT ARGUMENTS. THE FACT REMAINS THAT THE ASSESSEE HAS DULY PLACED ON R ECORD THE RELEVANT CONTRACT NOTES, SHARE CERTIFICATE(S), DETAILED CORROBORATIVE DOCUME NTARY EVIDENCE INDICATING PURCHASE / SALE OF SHARES THROUGH REGISTERED BROKERS BY BANKIN G CHANNEL, DEMAT STATEMENTS ETC., THE REVENUES ONLY CASE AS PER ITS PLEADINGS AND BO TH THE LOWER AUTHORITIES UNANIMOUSLY CONCLUSION THAT THERE IS VERY STRONG CI RCUMSTANTIAL EVIDENCE AGAINST THE ASSESSEE SUGGESTING BOGUS STCL ACCOMMODATION ENTRIE S. I FIND THAT THERE IS NOT EVEN A SINGLE CASE WHICH COULD PIN-POINT ANY MAKING AGAINS T THESE ASSESSEES WHICH COULD BE TAKEN AS A REVENUE NEXUS. I MAKE IT CLEAR THAT THE CBDTS CIRCULAR DATED 10.03.2003 HAS ITSELF MADE IT CLEAR THAT MERE SEARCH STATEMENT S IN THE NATURE OF ADMISSION IN ABSENCE OF SUPPORTIVE MATERIAL DO NOT CARRY WEIGHT. I NOTICE THAT THIS TRIBUNALS CO- ORDINATE BENCHS DECISION IN ITA NO. 2474/KOL/2018 IN MAHAVIR JHANWAR VS. ITO DECIDED ON 01.02.2019 HAS TAKEN INTO CONSIDERATION IDENTICAL FACTS AND C IRCUMSTANCES PAGE 11 AS WELL AS LATEST DEVELOPMENTS ON LEGAL SIDE WHILST DELETING THE SIMILAR BOGUS LTCG ADDITION AS FOLLOWS:- 2. THE SOLE ISSUE THAT ARISES FOR MY ADJUDICATION I S WHETHER THE ASSESSING OFFICER WAS RIGHT IN REJECTING THE CLAIM OF THE ASSESSEE THAT H E HAD EARNED LONG TERM CAPITAL GAINS ON PURCHASE AND SALE OF THE SHARES OF M/S UNN O INDUSTRIES. THE AO BASED ON A GENERAL REPORT AND MODUS OPERANDI ADOPTED GENERALLY AND ON GENERAL OBSERVATIONS HAS CONCLUDED THAT THE ASSESSEE HAS CLAIMED BOGUS L ONG TERM CAPITAL GAIN. HE MADE AN ADDITION OF THE ENTIRE SALE PROCEEDS OF THE SHAR ES AS INCOME AND REJECTED THE CLAIM OF EXEMPTION MADE U/S 10(38) OF THE ACT. THE EVIDEN CE PRODUCED BY THE ASSESSEE IN SUPPORT OF THE GENUINENESS OF THE TRANSACTION WAS R EJECTED. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL AND TH E LD. CIT(A), KOLKATA, HAD UPHELD THE ADDITION. THE LD. CIT(A) HAS IN HIS ORDER RELIE D UPON CIRCUMSTANTIAL EVIDENCE AND HUMAN PROBABILITIES TO UPHOLD THE FINDINGS OF THE AO. HE ALSO RELIED ON THE SO CALLED RULES OF SUSPICIOUS TRANSACTION . NO DIRECT MATERIAL WAS FOUND TO CONTROVERT THE EVIDENCE FILED BY THE ASSESSEE, IN SUPPORT OF T HE GENUINENESS OF THE TRANSACTIONS. IN OTHER WORDS, THE OVERWHELMING EVIDENCE FILED BY THE ASSESSEE REMAINS UNCHALLENGED AND UNCONTROVERTED. THE ENTIRE CONCLUSIONS DRAWN BY THE REVENUE AUTHORITIES, ARE BASED ON A COMMON REPORT OF THE DIRECTOR OF INVESTI GATION, KOLKATA, WHICH WAS GENERAL IN NATURE AND NOT SPECIFIC TO ANY ASSESSEE. THE ASSESSEE WAS NOT CONFRONTED WITH ANY STATEMENT OR MATERIAL ALLEGED TO BE THE BA SIS OF THE REPORT OF THE INVESTIGATION WING OF THE DEPARTMENT AND WHICH WERE THE BASIS ON WHICH CONCLUSION WERE DRAWN AGAINST THE ASSESSEE. COPY OF THE REPORT WAS ALSO NOT GIVEN. 4. THE LD. D/R, SUBMITTED THAT THE TRANSACTION WAS NOT GENUINE. HE ARGUED THAT THE ENTIRE CAPITAL GAIN WAS STAGE MANAGED BY A FEW OPER ATORS AND INVESTORS. HE RELIED ON THE ORDER OF LD. ASSESSING OFFICER AND ARGUED THAT THE SAME BE UPHELD. HE RELIED ON THE ORDER OF THE CHENNAI A BENCH OF THE TRIBUNAL IN THE CASE OF M/S. PANKAJ AGARWAL & SONS (HUF) VS. ITO IN ITA NO. 1413 TO 142 0/CHNY/2018; ORDER DT. 06/12/2018, FOR THE PROPOSITION THAT SUCH CAPITAL G AINS HAVE TO BE BROUGHT TO TAX. HE ALSO RELIED ON THE JUDGMENT OF THE HONBLE BOMBAY H IGH COURT IN THE CASE OF SANJAY BIMALCHAND JAIN VS. PRINCIPAL COMMISSIONER OF INCOM E-TAX-1, NAGPUR; [2018] 89 TAXMANN.COM 196 (BOMBAY) AND THE DECISION OF THE SM T. M.K. RAJESHWARI VS. ITO; ITA NO.1723/BNG/2018; ASSESSMENT YEAR 2015-16, ORDE R DT. 12/10/2018. 5. AFTER HEARING BOTH SIDES, I FIND THAT IN A NUMBE R OF CASES THIS BENCH OF THE TRIBUNAL AND JURISDICTIONAL CALCUTTA HIGH COURT HAS CONSISTE NTLY HELD THAT, DECISION IN ALL SUCH CASES SHOULD BE BASED ON EVIDENCE AND NOT ON GENERA LISATION, HUMAN PROBABILITIES, SUSPICION, CONJECTURES AND SURMISES. IN ALL CASES A DDITIONS WERE DELETED. SOME OF THE CASES WERE, DETAILED FINDING HAVE BEEN GIVEN ON THI S ISSUE, ARE LISTED BELOW: - SL.NO. ITA NO.S NAME OF THE ASSESSEE DATE OF ORDER/JUDGMENT 1 ITA NO.714 TO 718/KOL/2011 ITAT, KOLKATA DICT VS. SUNITA KHEMKA 28.10.2015 2 214 ITR 244 CALCUTTA HIGH COURT CIT VS. CARBO IND USTRIAL HOLDINGS LTD. 3 250 ITR 539 CIT VS. EMERALD COMMERCIAL LTD. 23.03.2001 4 ITA NO.1236-1237/KOL/2017 PAGE 12 5 ITA NO.569/KOL/2017 GAUTAM PINCHA 15.11.2017 6 ITA NO.443/KOL/2017 KIRAN KOTHARI HUF 15.11.2017 7 ITA NO.2281/KOL/2017 NAVNEET AGARWAL VS. ITO 20.0 7.2018 8 ITA NO.456 OF 2007 BOMBAY HIGH COURT CIT VS. SHRI MUKESH RATILAL MAROLIA 18.01.2018 9. ITA NO.95 OF 2017 (O&M) PCIT VS. PREM PAL GANDHI 18.01.2018 10 ITA NO.1089/KOL/2018 SANJAY MEHTA 28.09.2018 6. REGARDING THE CASE LAWS RELIED UPON BY THE LD. DEPARTMENTAL REPRESENTATIVE, I FIND THAT, IN THE CASE OF M/S. PANKAJ AGARWAL & SON S (HUF)(SUPRA), THE ISSUE WAS DECIDED AGAINST THE ASSESSEE FOR THE REASON THAT, T HE ASSESSEE COULD NOT JUSTIFY HIS CLAIM AS GENUINE BY PRODUCING EVIDENCE AND WAS ONLY ARGUING FOR THE MATTER TO BE SET ASIDE TO THE LOWER AUTHORITIES ON THE GROUND OF NAT URAL JUSTICE. AS SIMILAR ARGUMENTS WERE NOT RAISED BEFORE THE LOWER AUTHORITIES BY THE ASSESSEE, THE ITAT REJECTED THESE ARGUMENTS. IN THE CASE ON HAND, ALL EVIDENCES WERE PRODUCED BY THE ASSESSEE. IN THE CASE OF SANJAY BIMALCHAND JAIN, LEGAL HEIR OF SANTI DEVI BIMALCHAND JAIN, THE HONBLE HIGH COURT UPHELD THE STAND OF THE REVENUE THAT THE TRANSACTION IN QUESTION IS AN ADVENTURE IN NATURE OF TRADE AND THE PROFIT O F THE TRANSACTIONS IS ASSESSABLE UNDER THE HEAD OF BUSINESS INCOME . IN THE CASE ON HAND, THE LD. ASSESSING OFFICER HAS NOT ASSESSED THIS AMOUNT AS BUSINESS INCOME. IN ANY EVENT, I AM BOUND TO FOLLOW THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN TH IS MATTER. I FIND THAT THE ASSESSEE HAS FILED ALL NECESSARY EVIDENCES IN SUPPORT OF THE TRANSACTIONS. SOME OF THESE EVIDENCES ARE (A) EVIDENCE OF PURCHASE OF SHARES, ( B) EVIDENCE OF PAYMENT FOR PURCHASE OF SHARES MADE BY WAY OF ACCOUNT PAYEE CHE QUE, COPY OF BANK STATEMENTS, (C) COPY OF BALANCE SHEET DISCLOSING INVESTMENTS, ( D) COPY OF DEMAT STATEMENT REFLECTING PURCHASE, (E) COPY OF MERGER ORDER PASSE D BY THE HIGH COURT , (F) COPY OF ALLOTMENT OF SHARES ON MERGER, (G) EVIDENCE OF SALE OF SHARES THROUGH THE STOCK EXCHANGE, (H) COPY OF DEMAT STATEMENT SHOWING THE S ALE OF SHARES, (I) COPY OF BANK STATEMENT REFLECTING SALE RECEIPTS, (J) COPY OF BRO KERS LEDGER, (K) COPY OF CONTRACT NOTES ETC. 7. THE PROPOSITION OF LAW LAID DOWN IN THESE CASE LAWS BY THE JURISDICTIONAL HIGH COURT AS WELL AS BY THE ITAT KOLKATA ON THESE ISSUE S ARE IN FAVOUR OF THE ASSESSEE. THESE ARE SQUARELY APPLICABLE TO THE FACTS OF THE C ASE. THE LD. DEPARTMENTAL REPRESENTATIVE, THOUGH NOT LEAVING HIS GROUND, COUL D NOT CONTROVERT THE CLAIM OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ISSUE IN QUES TION IS COVERED BY THE ABOVE CITED DECISIONS OF THE HONBLE JURISDICTIONAL CALCUTTA HI GH COURT AND THE ITAT. I AM BOUND TO FOLLOW THE SAME. 8. IN VIEW OF THE ABOVE DISCUSSION I DELETE THE AD DITION MADE U/S 68 OF THE ACT, ON ACCOUNT OF LONG TERM CAPITAL GAINS. 5. COUPLED WITH THIS, HON'BLE JURISDICTIONAL HIGH C OURTS OTHER DECISIONS IN CIT VS. RUNGTA PROPERTIES PVT. LTD. ITA NO.105 OF 2016, CIT VS. SHREYAHI GANGULY ITA NO. 196 OF 2012, M/S CLASSIC GROWERS LTD VS. CIT ITA NO . 129 OF 2012 ALSO HOLD SUCH TRANSACTIONS IN SCRIPS SUPPORTED BY THE CORRESPONDI NG RELEVANT EVIDENCE TO BE GENUINE. I FURTHER MADE IT CLEAR THAT THIS ASSESSEE HAD FILE D ALL OF HER DETAILED EVIDENCE DURING SCRUTINY. THE ASSESSING OFFICERS SHOW CAUSE NOTICE (S) U/S. 142(1)/143(2) OF THE ACT NOWHERE SOUGHT TO TREAT THE IMPUGNED PROFIT AS BOGU S. I ADOPT THE ABOVE EXTRACTED PAGE 13 REASONING MUTATIS MUTANDIS THEREFORE TO DELETE THE IMPUGNED STCL DISALLOWANCE / ADDITION OF RS.36,48,564/-. UNEXPLAINED COMMISSION EXPENDITURE DISALLOWANCE, IF ANY SHALL AUTOMATICALLY FOLLOW SUIT AS A NECESSARY CORO LLARY. NO OTHER ARGUMENT OR GROUND HAS BEEN AGITATED BEFORE ME DURING THE COURSE OF HE ARING. THIS LEAD CASE ITA NO.309/KOL/2019 IS ALLOWED IN ABOVE TERMS. [ SAME ORDER TO FOLLOW IN ALL THE REMAINING TWELVE APPEAL(S) ] IN ABSENCE OF ANY DISTINCTION BEING POINTED OUT A T REVENUES BEHEST. 6. ALL THESE ASSESSEES APPEALS ARE ALLOWED IN ABOV E TERMS. A COPY OF THE INSTANT COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILE( S). ORDER PRONOUNCED IN OPEN COURT ON 19/07/2019 SD/- (S.S. GODARA) JUDICIAL MEMBER KOLKATA, *DKP/SR.PS ' - 19/07/2019 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-PREM BALA PUROHIT, FLAT NO.6B, BLOCK-8, P .S. MAGNUM, VIP ROAD, KOLKATA-52/SHR I PRAMOD KR. AGRAWAL, BLOCK-3, FLAT-6C AVANI OXFORD,136, JE SSORE ROAD, LAKE TOWN, KOLKATA-55/M/S JIVENDRA MISHRA, HUF, 85, NETAJI SUBASH ROAD, R.NO.311, 3 RD FLOOR, KOLKATA-001/NA RESH CHAND CHANDAK L/H KUSUM CHANDAK, 8 TH FLOOR, 9, INDIA EXCHANGE PLACE, KOLKATA-001/ANIL B AJPAI, 72, BBD ROAD, HINDMOTOR, H OOGHLY-712233/DR. DINESH KR. HAWELIA C/O ALL INDIA ROAD, T RANSPORT AGENCY, 28, BLACK BURN LANE, 5 TH FL. KOLKATA-12/JAI PR AKASH GUPTA, R.NO.18, 1 ST FLOOR, KRISHNA SADAN, 26, P.K. TAGO RE STREET, JORABAGAN, KOLKATA-06/ROHIT BANSAL FLAT NO.1A, CHITRALEK HA APARTMENT, 15A, BALLYGUNGE PARK ROAD, KOLAKTA-19/ROHIT AGARWA L C/O M.M.MURARKA & CO. 7, LYONS RANGE LAL BAZAR, KOLKATA-001/ PAWAN KR. TOSHNIWAL (HUF), KAILASH APARTMENT 174/15 NSC BOSE ROAD, 4 TH FL. AZADGARH P.O. KOLKATA-40 SANDEEP DIDWANIA 143/1, COTTON ST. 2 ND FL. KOLKATA-07/DR. ARUP KR. AGARWALA 34/44A, BANDH ROAD, ABHIRAMPUR, MOKDUMPUR, MALDA SADAR, MALDA-732103 2. /REVENUE-ITO WD-62(2), 169 AJC BOSE ROAD, KOLKATA-1 4/ITO WD-22(4)- 22(1)-37(1)-54/1,RAFI AHMED KIDWAI ROAD, KOLKATA-16/ITO WD- PAGE 14 35(2)-35(3), POORVA 1 10, SHANTI PALLY, KOLKATA-107/ITO WD-23(2) AAYAKAR BHAWAN, G.T RO AD, KHADINA MORE, DIST. HOOGHLY-712101/ DCIT,(IT), CIRCLE-2(1) , AAYKAR BHAWAN, POORVA KOLKATA-107/ITO WARD- 62(3), BAMBOOVILLA, 1 69 AJC BOSE ROAD, KOLKATA/ITO WD-25(1), 2, GARIAHAT ROAD, (S), 1 ST FL. KOLKATA-68/ ITO WD-45(2), 3, GOVT. PLACE,(W) KOLKATA-001 3. % ' / CONCERNED CIT 4. ' - / CIT (A) 5. ( ++% , % / DR, ITAT, KOLKATA 6. - / GUARD FILE. BY ORDER/ , /TRUE COPY/ %, IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER CORRIGENDUM ( . / ITA NO. 2547/KOL/2018 ) ( +- - / ASSESSMENT YEAR : 201516 ) ROHIT BANSAL FLAT NO.1A, CHITRALEKHA APARTMENT, 15A, BALLYGUNGE PARK ROAD, KOLKATA-19 [ PAN NO. ADPPB 3060 P ] / V/S . DCIT (IT), CIRCLE- 2(1), AAYKAR BHAWAN POORVA, KOLKATA-700 107 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI K.M. RAI, FCA /BY RESPONDENT SHRI NICHOLAS MURMU, ADDL. CIT-DR /DATE OF HEARING 18-07-2019 (MAIN CASE) /DATE OF PRONOUNCEMENT 19-07-2019 PAGE 15 /O R D E R THE ASSESSEE, BY WAY OF A LETTER DATED 22 ND JULY, 2019 BROUGHT TO MY NOTICE THAT THE TRIBUNAL, WHILE PASSING THE ORDE R DATED 19 TH JULY 2019, IN ITA NO.2547/KOL/2018, FOR ASSESSMENT YEAR 20151 6, THE CAPTIONED FILE AT PAGE-3 BY APPELLANT NONE AND IN SUB-PARA IN F ORMER APPEAL(S) ITA NO.2547/KOL/2018 . NONE APPEAR AT THE RESPECTIVE ASSESSEES BEHEST. WHICH, IN FACT, SOUGHT TO HAVE BEEN MENTIO NED AS BY APPELLANT SHRI K.M. RAI, FCA AND RECTIFY CASE(S) CALLED TWICE IN FORMER APPEAL (S) ITA NO.2547/KOL/2018. 2. ON PERUSAL OF THE RECORDS AVAILABLE BEFORE ME, I FI ND THAT THE AFORESAID RECTIFICATION, AS POINTED OUT BY THE ASSE SSEE, IS APPARENT ON RECORD WHICH NEEDS RECTIFICATION. CONSEQUENTLY, I P ROCEED TO RECTIFY THE SAME. 3. THE NAME OF THE AUTHORIZED REPRESENTATIVE ON BEHALF OF THE ASSESSEE IN THE CAPTIONED APPEAL IN 2547/KOL/2018, FOR ASSESSMENT YEAR 201516, ORDER DATED 19TH JULY 2019, BE READ AS SHRI K.M.RAI, FCA AND PARTLY RECTIFY IN SUB-PARAS FIRST LINE ASE(S) CALLED TWICE IN FORMER APPEAL(S) ITA NO.2547/KOL/2018 IS MODIFIED ACCORDIN GLY. 4. THE ORDER DATED 19 TH JULY 2019 IS MODIFIED TO THIS EXTENT ONLY. SD/- ( S.S. GODARA) JUDICIAL MEMBER KOLKATA, *DKP/SR.PS ' - 24/07/2019 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ROHIT BANSAL, FLAT NO.1A, CHITRALEKHA AP ARTMENT, 15A, BALLYGUNGE PAR K ROAD, KOLKATA-19 2. /RESPONDENT-DCIT-(IT), CIRCLE-2(1), AAYAKAR BHAWAN POORVA, PAGE 16 FLOOR, KOLKTA-1 07 3. % ' / CONCERNED CIT 4. ' - / CIT (A) 5. ( ++% , % / DR, ITAT, KOLKATA 6. - / GUARD FILE. BY ORDER/ , /TRUE COPY/ %,