SMT. CHHAYA HASMUKHLAL RANAWAT, MUMBAI V. ITO 18(1)(3), MUMBAI

ITA 3278/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3498 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 16-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUNIL DESH
• Assessee Lawyers: RAJEEV KHANDELWAL LD
• Keywords: Unexplained cash credit; Principle of natural justice; Opportunity of cross examination; Earning of tax free income; Tangible material; Third party statement; Accommodation entries; Scheme of amalgamation; Onus to prove; Sham transactions; Penny stocks; Capital Gains
• Section: 69C; 143(3); 133(6); 13; 131; 68; 69; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE HONBLE SHRI AMARJIT SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO. 3278/MUM/2019 ( / ASSESSMENT YEAR: 2014 - 15 ) SMT. CHHAYA HASMUKHLAL RANAWAT 32/33, DAGINA BAZAR MUMBADVI ROAD, MUMBADEVI , MUMBAI - 400 0 0 2. / VS. INCOME T AX OFFICER - 18(1)(3) ROOM NO.203, 2 ND FLOOR EARNEST HOUSE, NCPA MARG NARIMAN POINT, MUMBAI - 400 0 2 1. ./ ./ PAN/GIR NO. AACPR - 2911 - F ( / APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI RAJEEV KHANDELWAL - LD. AR REVENUE BY : SHRI SUNIL DESHPANDE - LD. DR / DATE OF HEARING : 03/12/2020 / DATE OF PRONOUNCEMENT : 03/02/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR (AY) 2014 - 15 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - 29, MUMBAI [CIT(A)], APPEAL NO.CIT(A) - 29/628/ITO - 18(1)(3)/2016 - 17 DATED 10/04/2019 . THE ASSESSMENT WAS FRAMED BY LEARNED ASSESSING OFFICER U/S 143(3) VIDE ORDER DATED 29/12/2016. 2. THOUGH T HE ASSESSEE HAS RAISED MULTIPLE GROUND S OF APPEAL , HOWEVER IN SUM AND SUBSTANCE, THE ASSESSEE IS AGGRIEVED BY 2 CONFIRMATION OF CERTAIN ADDITIONS U/S 68 IN VIEW OF THE FACT THAT THE EXEMPTION CLAIMED U/S 10(38) WITH RESPECT TO LONG - TERM CAPITAL GAINS (LTCG) EARNED ON SALE OF CERTAIN SHARES WAS DENIED TO THE ASSESSEE AND SALE PROCEEDS OF SHARES WAS BROUGHT TO TAX AS UNEXPLAINED CASH CREDIT U / S 68. CONSEQUENTLY, ANOTHER ESTIMATED ADDITION ON ACCOUNT OF ALLEGED COMMISSION EXPENSES @ 4% AGAINST THESE TRANSACTIONS WAS ALSO MADE WHICH IS ALSO DISPUTED UNDER THE APPEAL . 3 . WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AND PERUSED RELEVANT MATERIAL ON RECORD INCLUDING WRITTEN SUBMISSIONS AND DOCUMENTS AS PLACED IN THE PAPER BOOK. THE JUDICIAL PRECEDENTS AS RELIED UPON DURING THE COURSE OF HEARING HAVE DULY BEEN DELIBERATED UPON. OUR ADJUDICATION TO THE SUBJECT MATTER WOULD BE AS GIVEN IN SUCCEEDING PARAGRAPHS. THE LD. AR , AT THE OUTSET, RELIED ON THE RECENT FAVORABLE DECISION OF THIS TRIBUNAL IN THE CASE OF DIPESH RAME SH VARDHAN V/S DCIT (ITA NOS.7648/MUM/2019 & ORS. ORDER DATED 11/08/2020) TO SUBMIT THAT THE FACTS AS WELL AS ISSU ES ARE IDENTICAL IN ALL RESPECT. IT HAS BEEN SUBMITTED THAT T HIS CASE LAW DEALS WITH GAINS ARISING OUT OF SALE OF SHARES OF AN ENTITY NAMELY M /S SUNRISE ASIA LIMITED (SAL) WHICH IS SIMILAR TO THE ISSUE IN THE PRESENT APPEAL. THE LD. DR RELIED ON THE ORDERS OF LOWER AUTHORITIES BUT FAILED TO BRING ON RECORD ANY CONTRARY DECISION TO REBUT THE SUBMISSIONS MADE BY THE LD. AR . NO DISTINCTION IN FACTS COULD BE POINTED OUT. PROCEEDINGS BEFORE LD. AO 4 .1 TO REITERATE, A N ASSESSMENT WAS FRAMED IN THE CASE OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION U/S 143(3) ON 29/12/2016. WHILE FRAMING THE ASSESSMENT, THE ASSESSEE WAS DENIED EXEMPTION U/S 10(38) O N CERTAIN LONG - TERM CAPITAL GAINS (LTCG) EARNED ON SALE OF 3 SHARES OF AN ENTITY NAMELY M/S SUNRISE ASIA LIMITED ( SAL ) . THE SAID GAINS WERE ULTIMATELY ADDED TO THE ASSESSEES INCOME AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. THE ASSESSEE HAS ALSO BEEN SAD DLED WITH ADDITION U/S 69 FOR RS.8.97 LACS ON ACCOUNT OF ESTIMATED COMMISSION INCOME WHICH IS CONSEQUENTIAL TO THE MAIN ADDITION. 4 .2 THE AFORESAID GAINS AROSE ON SALE OF 4500 0 SHARES OF AN ENTITY NAMELY M/S SUNRISE ASIA LIMITED (S AL ) . SINCE THE GAINS SO E ARNED FULFILLED THE CONDITIONS OF SEC. 10(38), THE SAME WERE CLAIMED TO BE EXEMPT WHILE FILING THE RETURN OF INCOME . THE SHARES WERE STATED TO BE PURCHASED BY THE ASSESSEE ON 16/09/2011 FOR A SUM OF RS.9 LACS AND THE SAME WERE SOLD BETWEEN T HE PERIODS JULY TO SEPTEMBER 2013 THEREBY Y IELDING LONG - TERM CAPITAL GAINS (LTCG) IN THE HANDS OF THE ASSESSEE. IN SUPPORT OF SALE TRANSACTIONS, THE ASSESSEE FURNISHED CONTRACT NOTES ISSUED BY THE BROKER S , D E MAT STATEMENT AND BANK STATEMENTS EVIDENCING MOVEMENT OF SHAR ES FROM ASSESSEES ACCOUNT AS WELL AS RECEIPT OF SALE PROCEEDS THROUGH BANKING CHANNELS . REGARDING PURCHASE OF SHARES, IT WAS EXPLAINED THAT INITIALLY THE SHARES OF ANOTHER ENTITY NAMELY M/S SANTOSHIMA LEASE FINANCE & INVESTMENT LTD. WERE ACQUIRED BY THE A SSESSEE . HOWEVER, T HE NAME OF THIS ENTITY WAS CHANGED TO M/S SANTOSHIMA TRADELINKS LIMITED WHICH ULTIMATELY G OT AMALGAMATED WITH M/S SUNRISE ASIA LIMITED (SAL) WITH THE APPROVAL OF HONBLE BOMBAY HIGH COURT . THE SHARES WER E STATED TO BE ACQUIRED THROUGH PR EFERENTIAL ALLOTMENT ON PRIVATE PLACEMENT BASIS . IN SU PPORT OF PURCHASE TRANSACTIONS , COPY OF ALLOTMENT ADVICE AND BANK STATEMENT HIGHLIGHTING P AYMENT OF PURCHASE CONSIDERATION THROUGH BANKING CHANNEL WAS ALSO ENCLOSED. UPON PERUSAL OF SALE DATA, IT TRANSP IRED THAT THE SHARES WERE 4 SOLD TO 41 DIFFERENT ENTITIES ON VARIOUS DATES, WHICH HAS A LREADY BEEN TABULATED IN THE ASSESSMENT ORDER. 4 .3 HOWEVER, I N THE BACKGROUND OF INVESTIGATION CARRIED OUT BY KOLKATA INVESTIGATION WING IN THE MATTER OF PENNY STOCKS, IT WAS ALLEGED BY LD. AO THAT GAINS WERE ARRANGED, PREMEDITATED AND BOGUS. THE AIM OF THE SCHEME WAS TO ROUTE THE UNACCOUNTED MONEY OF BENEFICIARIES AS EXEMPT INCOME IN THE GARB OF LTCG BY SHOWING SALE OF SHARES OF PREMEDITATED SCRIPS ON RECOGNIZED STOCK EXC HANGES. AFTER MAKING PREFERENTIAL ALLOTMENT , THE PRICE OF THE SHARES WOULD BE RIGGED UP AND JACKED UP THROUGH CIRCULAR TRADING BY CARTEL OF BROKERS ACTING IN CONCERT. THIS WOULD BE MANAGED BY THE OPERATOR OF THE SC RIP WHI CH WOULD MANA G E OVERALL AFFAIRS OF THE SCHEME. DURING THE INVESTIGATION, STATEMENTS OF VARIOUS OPERATORS , ENTRY PROVIDERS AND STOCK BROKERS WERE RECORDED WHERE IN THE SAID FACTS OF THEIR ENGAGEMENT IN PR OVIDING ACCOMMODATION ENTRIES IN THE FORM OF LONG - TE RM CAPITAL GAINS (LTCG) / SHORT - TERM CAPITAL LOSSES (STCL) WERE ADMITTED. 4 .4 DURING SE ARCH & SEIZURE ACTION U/S 132 IN THE CAS E OF SHRI ANI L AGARWAL, DIRECTOR OF M/S COMFORT SECURITIES L T D. (A REGISTERED STOCK BROKER ) AND HIS GROUP ENTITIES , HIS STATEMENT WAS RECORDED ON 12/04/2015 U/ S 132(4 ). IN THE SAID STATEMENT HE ADMITTED TO BE HELPING VARIOUS PERSONS IN OBTAINING ACCOMMODATION ENTRIES . HE ALSO ADMITTED THAT HE PROVIDE D SUCH ENT RIES WITH REGARD TO THE SHARES OF M/S S UNRISE ASIA LIMITED (SAL) BESIDES VARIOUS OTHER CONCERNS. IN THE STATEME NT , HE EXPLAINED THE MODUS OPERANDI ADOPTED BY HIM WITH A VIEW TO PROVIDE BOGUS LTCG / STCL. 5 SIMILAR STATEMENTS WERE RECORDED FROM VARIOUS SUB - BROKERS OF KOLKATA WHO ADMITTED TO BE INDULGING IN SIMILAR ACTIVITY OF PROVIDING ACCOMMODATION ENTRIES IN LIEU O F COMMISSION. 4 .5 UPON PERUSAL OF FINANCIAL STATEMENTS OF M/S SAL, IT WAS NOTED THAT ITS NET WORTH WAS NOT SIGNIFICANT AND IT INCURRED LOSSES IN FEW YEARS. THE PRICE MOVEMENT OF SHARES REFLECTED PHENOMENAL INCREASE OVER A SHORT PERIOD OF TIME. THE NUMBER OF TRADES DONE IN THE SCRIP BETWEEN 17/08/2011 TO 08/03/2013 W AS FOUND TO BE 2481 TRADES AND THE SHARES WAS TRADED FOR 200 TRADING DAYS. IN ASSESSEES CASE S HARES WERE FOUND TO BE SOLD BETWEEN JULY TO SEPTEMBER, 2013 AT AVERAGE RATE OF RS.500/ - PER SHARE TO VARIOUS ENTITIES / PERSONS. NOTICES U/S 133(6) WERE ISSUED TO ALL PURCHASERS, THE OUTCOME OF WHICH IS NOTED IN PARA 10.3 OF THE ORDER. IN FEW CASES NO REPLIES WERE RECEIVED AND IN FEW CASES THE NOTICES REMAINED UN - SERVED BY POSTAL AUTHORITIES WHEREAS RE PLIES WERE RECEIVED IN FEW CASES. AS PER THE INVESTIGATION FINDING, MANY OF THESE ENTITIES WERE STATED TO BE PAPER ENTITIES BEING CONTROLLED BY ONE SHRI VIPUL BHATT. HIS STATEMENT WAS RECORDED U /S 132(4) DURING SEARCH OPERATIONS WHEREIN HE ADMITTED TO BE A CTING AS ACCOMMODATION ENTRY PROVIDER. HE ALSO ADMITTED THAT M/S SAL WAS PAPER COMPANY WHICH WAS BEING USED TO PROVIDE BOGUS ACCOMMODATION ENTRIES TO VARIOUS BENEFICIARIES THROUGH VARIOUS INTERMEDIARIES . HE ALSO STATED THE MODUS OPERANDI, BROKERS INVOLVED AND THE NAME OF THE PERSONS USED AS EXIT PROVIDERS. 4 .6 IN THE BACKGROUND OF ALL THESE FACTS, THE ASSESSEE WAS EXAMINED ON OATH U/S 131 ON 20/12/2016 WHICH IS EXTRACTED AT PARA - 15 OF THE ASSESSMENT ORDER. IN REPLY TO QUESTION NOS. 5 & 6, THE ASSESSEE SUB MITTED THAT SHE WAS INVESTING IN SHARES SINCE LAST 12 - 14 YEARS. THE 6 DETAIL OF INVESTMENTS MADE BY HER WAS ALSO ELABORATED. THE INVESTMENT IN M/S SANTOSHIMA WAS STATED TO BE MADE IN PREFERENTIAL ALLOTMENT ON THE BASIS OF ADVICE GIVEN BY HER BROTHER - IN - LAW. THE LTCG SO EARNED ON THIS SCRIP WERE STATED TO BE INVESTED IN A RESIDENTIAL HOUSE AS WELL AS INVESTED IN ONE OF HER PARTNERSHIP FIRM. SHE DENIED HAVING OBTAINED ANY ACCOMMODATION ENTRY IN THE SCRIP OF M/S SAL AND ALSO DENIED HAVING PAID ANY CASH FOR THE SAME. THE ASSESSEES BROTHER - IN - LAW CONFIRMED HAVING SUBSCRIBED TO THE SHARES OF M/S SAL ON THE INSTRUCTION OF THE ASSESSEE. 4 .7 FINALLY, IN THE LIGHT OF AFORESAID FACTS, A CONCLUSION WAS DRAWN BY LD. AO THAT THE ASSESSEE RESORTED TO PRE - CONCEIVED SCHEME TO PROCURE LTCG BY WAY OF PRICE DIFFERENCE IN SHARE TRANSACTIONS WHICH WAS NOT SUPPORTED BY MARKET FACTORS. THE COMMUTATIVE EVENT IN TRANSACTIONS WOULD REVEAL THAT THE SAME WERE DEVOID OF ANY COMMERCIAL NATURE AND FELL IN REALM OF NOT BEING BONA - FIDE AND T HE LTCG SO EARNED WAS NOT ALLOWABLE. THE ASSESSEE FAILED TO DISCHARGE THE ONUS OF PROVING THE UNUSUAL RISE AND FALL OF SHARES PRICES TO BE NATURAL AND BASED ON THE MARKET FORCES . THE STATED TRANSACTIONS WERE ALLEGED TO BE CLOSED CIRCUIT TRANSACTIONS & STRU CTURED ONE. THOUGH THE NET - WORTH OF M/S SAL WAS NEGLIGIBLE BUT THE SHARE PRICES WERE ARTIFICIALLY RIGGED TO UNUSUAL HIGH LEVELS . 4 .8 ULTIMATELY, THE SALE PROCEEDS AS RECEIVED BY THE ASSESSEE WAS HELD TO BE RECEIVED AGAINST PAYMENT OF EQUIVALENT CASH PAID BY THE ASSESSEE AND THEREFORE, THE SAME WAS ADDED TO ASSESSEES INCOME AS UNEXPLAINED CASH CREDIT. THE COMMISSION AGAINST THESE TRANSACTIONS WAS ESTIMATED @4% WHICH LED TO ANOTHER ADDITION U/S 69C FOR RS.8.97 LACS. 7 PROCEEDINGS BEFORE LD. CIT(A) 5 . 1 BEF ORE L D CIT(A), THE ASSESSEE M AINTAINED THAT THE FINDINGS O F INVESTIGATION WING AND THE OB SERVATIONS OF LD. AO WERE GENERAL OBSERVATION WITHOUT ANY SPECIFIC REFEREN CE TO THE TRANSACTIONS OF THE ASSESSEE . THESE FINDINGS HAD NO CONNECTION OR RELATION WITH ASS ESSEES CASE AND DO NOT HAVE DIRECT EVIDENTIARY VALUE. THE ADVERSE STATEMENTS BEING RELIED UPON BY LD. AO WERE NEVER CONFRONTED TO THE ASSESSEE NOR ANY OPPORTUNITY OF CROSS - EXAMINE THE PERSON MAKING THOSE STATEMENTS WAS EVER PROVIDED TO THE ASSESSEE. THE O PINION FORMED BY LD. AO WAS WITHOUT ANY BASIS. THE STOCK PRICES FLUCTUATE WIDELY IN THE SECONDARY STOCK MARKET AND THE PRICES WOULD BE DETERMINED BY MARKET FORCES. THERE WAS NO REFERENCE TO ASSESSEE IN THE STATEMENT MADE BY SHRI ANIL AGARWAL U/S 132(4). TH E ASSESSEE NEVER ENTERED INTO TRANSACTIONS WITH ANY OF THESE PARTIES MAKING THE ADVERSE STATEMENT . FURTHER, THE STATEMENT WOULD HAVE NO VALUE U NLESS THE CROSS EXAMINATION OF PERSONS MAKING THOSE STATEMENTS WAS PROVIDED TO THE ASSESSEE. THE ATTENTION WAS DR AWN TO THE FACT THAT THE SHARES WERE SOLD IN ONLINE MECHANISM I.E. B OLT OF BSE WHICH IS MONITORED BY BOMBAY STOCK E XCHANGE. THE ASSESSEE ALSO DENIED HAVING ANY LINK WITH SHRI VIPUL VIDU R BHATT SINCE THE SHARES WER E SOLD IN ONLINE MECHANISM THROUGH AUTHORIZ ED STOCK BROKER OF BS E . IT WAS SUBMITTED THAT T HE ALLEGATION OF PRICE MANIPULATION WAS BA S ED ON MERE SUSPICION AND GUESS WORK WI THOUT ANY BASIS OR EVIDENCE ON RECORD. THE ATTENT ION WAS ALSO DRAWN TO THE SUBSEQUENT R ETRACTION STAT EMENT MADE BY SHRI VIPUL VI DUR BHATT. RATHER , THE ASSESSEE PRIMA - FACIE DISCHARGED THE ONUS TO PROVE THE GENUINENESS OF ACQUISITION A ND SALE OF SHARES AND THE TRANSACTIONS WERE GENUINE TRANSACTIONS. TO DISREGARD THE SAME, THERE MUST BE SOMETHING MORE THAN 8 MERE SUSPICION TO SUPPORT TH E ASSESSMENT AS P ER THE DECISION OF HONBLE APEX COURT IN DHAKESHWARI COTTON MILLS LTD. V/S CIT (26 ITR 775) . THE ASSESSMENT SHOULD NOT BE BASED MEREL Y ON SUSPICION OR G UESS WORK B U T ON LEGITIMATE MATERIAL FROM WHICH REAS ONABLE INFERENCE OF INCOME COULD HA VE BEEN DRAWN. IN THE SAID BACKGROUND, THE ADDITIONS SO MADE BY LD. AO WERE VEHEMENTLY CONTESTED. 5 .2 HOWEVER, THE SAID ARGUMENTS COULD NOT CONVINCE LD. CIT(A) WHO CHOSE T O CONFIRM THE ACTION OF LD. AO BY OBSERVING THAT THE ASSESSEE HAS MIS - UTILI ZED THE PROVISIONS OF SEC.10(38). NONE OF THE PARAMETERS WHICH WERE ESSENTIAL FOR INCREASE IN PRICE OF SHARES WAS PRESENT. THE LD. AO ESTABLISHED THE MANIPULATION IN TRADING OF SHARES AS IT WAS CATEGORICALLY ADMITTED BY THE K EY PERSONS THAT M/S SAL WAS A PENNY STO CK AND ITS PRICES WERE RIGGED TO PROVIDE BOGUS LTCG TO VARIOUS BENEFICIARIES. FINALLY RELYING UPON THE FINDINGS OF LD.AO, THE IMPUGNED ADDITIONS U/S 68 AS WELL AS U/S 69C WAS CONFIRMED. AGGRIEVED AS AFORESAID, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. O UR FINDINGS AND ADJUDICATION 6 . WE HAVE CAREFULLY CONSIDERED THE FACTUAL MATRIX AS ENUMERATED IN THE PRECEDING PARAGRAPHS. THE MATERIAL ON RECORD WOULD REVEAL THAT THE ASSESSEE ACQUIRED CERTAIN SHARES OF AN ENTITY NAMELY M/S SANTOSHIMA LEASE FINANCE & INVE STMENT (INDIA) LTD. DURING SEPTEMBER, 2011 AT AGGREGATE CONSIDERATION OF RS.9 LACS. THE NAME OF THIS ENTITY WAS SUBSEQUENTLY CHANGED TO M/S SANTOSHIMA TRADELINKS LIMITED VIDE FRESH CERTIFICATE OF INCORPORATION DATED 16/09/2011 ISSUED BY THE REGISTRAR OF CO MPANIES, MAHARASHTRA. THE PURCHASE CONSIDERATION ADMITTEDLY WAS PAID THROUGH BANKING CHANNELS WHICH IS EVIDENCED BY ASSESSEES BANK STATEMENT AS PLACED ON RECORD. THE INVESTMENT SO MADE BY THE 9 ASSESSEE WAS DULY REFLECTED IN HER BALANCE SHEET AS ON 31/03/20 12. THE PURCHASE OF SHARES IS EVIDENCED BY ALLOTMENT ADVICE DATED 11/11/2011 WH ICH ESTABLISH THAT THE ASSESSEE HAS BEEN ALLOTTED 45000 SHARES. M/S S ANTOSHIMA TRADELINKS LIMITED ULTIMATELY GOT AMALGAMATED WITH M/S SUNRISE ASIA LIMITED (SAL) WITH THE APPROVA L OF HONBLE BOMBAY HIGH COURT VIDE ORDER DATED 22/03/2013 AND ACCORDINGLY, THE EXISTING SHARES GOT EXCHANGED WITH THE SHARES OF THE NEW ENTITIES. THESE SHARES WERE DULY CREDITED IN ASSESSEES DEMAT ACCOUNT WHICH IS SUPPORTED BY DEMAT STATEMENT AS PLACED O N RECORD. ALL THESE SHARES HAVE ULTIMATELY BEEN SOLD IN ONLINE MECHANISM OF RECOGNIZED STOCK EXCHANGE IN VARIOUS TRENCHES BETWEEN THE PERIODS 17/07/2013 TO 1 3/09/2013 AND THE SALE HAS TAKEN PLACE THROUGH REGISTERED BROKERS OF THE STOCK EXCHANGE. THE SALE T RANSACTIONS ARE EVIDENCED BY BROKERS CONTRACT NOTES. THE SALE CONSIDERATION HAS DULY BEEN RECEIVED THROUGH BANKING CHANNELS AND THE SHARES HAVE MOVED OUT OF ASSESSEES DEMAT ACCOUNT . UNDISPUTEDLY, THE ASSESSEE HAS HELD THE SHARES FOR MORE THAN ONE YEAR AN D THE GAIN SO EARNED WERE, INDEED, LONG TERM CAPITAL GAINS IN NATURE. APPARENTLY, THE ASSESSEE FULFILS ALL THE CONDITIONS PRESCRIBED U/S 10(38). UPON PERUSAL OF ASSESSEES BALANCE SHEET FOR PAST YEARS, IT COULD BE SEEN THAT THE ASSESSEE WAS HABITUAL INVEST OR IN THE SHARES AND WAS ENGAGED IN INVESTMENT ACTIVITIES. THE ASSESSEE HAD FURNISHED ALLOTMENT ADVICE, BANK STATEMENTS, DEMAT STATEMENTS, SALE CONTRACT NOTES ETC. IN SUPPORT OF THESE TRANSACTIONS. THE SALES TRANSACTIONS HAVE TAKEN PLACE IN ONLINE MECHANIS M THROUGH RECOGNIZED STOCK EXCHANGE WHEREIN THE IDENTITY OF THE BUYER WOULD NOT BE KNOWN AND THERE WOULD BE NO PRIVITY OF CONTRACT BETWEEN THE ASSESSEE AND PROSPECTIVE BUYERS OF SHARES. IN ONLINE MODE OF TRADE, THE PRICES WOULD BE GUIDED BY THE BUYER 10 WILLI NG TO BUY THE SHARES AT CERTAIN PRICES AND THE SELLER WILLING TO SELL THE SHARES AT CERTAIN PRICES. THE PRICES WOULD BE GUIDED MORE BY THE MARKET FORCES RATHER THAN THE FINANCIALS OR OTHER PARAMETERS. THERE WOULD BE BUYERS AND SELLERS LINING UP ON EITHER S IDE OF A POTENTIAL TRADE; ONE PARTY WILLING TO PART WITH OWNERSHIP AND OTHER PARTY WILLING TO ACQUIRE THE OWNERSHIP. WHEN BOTH THE PARTIES WOULD AGREE UPON A PRICE, THE TRADE IS MATCHED AND THAT PRICE WOULD BECOME NEW MARKET QUOTATION. THEREFORE, THE FINAN CIALS OF UNDERLYING ENTITIES, IN SUCH CASES, WOULD LOSE MUCH RELEVANCE IN SO FAR AS THE PRICE MOVEMENT OF SCRIP IS CONCERNED. ALL THESE EVIDENCES AS WELL AS DOCUMENTARY EVIDENCES REMAIN UNCONTROVERTED AND NO DEFECT HAS BEEN POINTED OUT BY LD.AO IN THE S AME. UPON PERUSAL OF ALL THESE DOCUMENTS, IT IS QUITE DISCERNIBLE THAT THE ASSESSEE HAD FURNISHED ALL THE REQUISITE DOCUMENTARY EVIDENCES TO SUBSTANTIATE THE TRANSACTIONS AND THEREFORE, THE ONUS HAD SHIFTED ON REVENUE TO SUBSTANTIATE THE ALLEGATION THAT TH E IMPUGNED GAINS WERE UNACCOUNTED MONEY OF THE ASSESSEE AND THE SAME WAS ROUTED THROUGH DUMMY ENTITIES IN THE GARB OF LTCG. THE ASSESSEE ALL ALONG DENIED HAVING ENTERED INTO ANY BOGUS TR ANSACTIONS OR PAID ANY CASH WHILE UNDERTAKING THESE TRANSACTIONS. 7 . W E FIND THAT THE WHOLE BASIS OF DISREGARDING THESE TRANSACTIONS IS THE FINDINGS RENDERED BY INVESTIGATION WING , KOLKATA MERELY ON THE BASIS OF STATEMENT OF VARIOUS OPERATORS, ENTRY PROVIDERS AND STOCK BROKERS INCLUDING THE STATEMENT OF SHRI ANIL AGGARWAL. I T IS NOTEWORTHY THAT THAT THE ASSESSEE HAS NOT BEEN NAMED IN ANY OF THE STATEMENT MADE BY ANY OF THESE PERSONS RATHER THE BASIS OF ADDITIONS IS THE GENERAL STATEMENT THAT THE SHARES OF M/S SAL WERE USED TO PROVIDED BOGUS LTCG / STCL. MORE SO, ALL THESE ST ATEMENTS ARE NOT BACKED UP ANY COGENT 11 CORROBORATIVE MATERIAL ON RECORD TO ESTABLISH THE ASSESSEES INVOLVEMENT IN PRICE RIGGING OF SHARES OF M/S SAL. SIMILAR IS THE STATEMENT OF SHRI VIPUL BHATT WHICH IS GENERAL IN NATURE WITHOUT NAMING THE ASSESSEE OR EST ABLI SHING HER INVOLVEMENT IN OBTAINING BOGUS LTCG. THE LD. AO HAS NOWHERE ESTABLISHED THE INVOLVEMENT OF THE ASSESSEE IN PRICE RIGGING OR PRICE MANIPULATION. NO COLLUSION BETWEEN THE ASSESSEE AND ALLEGED ENTRY PROVIDERS OR OPERATORS IS SHOWN TO HAVE EXISTE D. ANOTHER NOTEWORTHY POINT IS THAT NO OPPORTUNITY TO CROSS - EXAMINE THE PERSONS MAKING ADVERSE STATEMENT WAS PROVIDED TO THE ASSESSEE DESPITE BEING SPECIFICALLY POINTED OUT BEFORE LOWER AUTHORITIES. THERE IS NO ADMISSION OR EVIDENCE BASED FINDING THAT ANY CASH GOT EXCHANGED BETWEEN THE ASSESSEE AND ANY OF THE ALLEGED BOGUS ENTITIES . IT IS TRITE LAW THAT NO ADDITIONS COULD BE MADE MERELY ON THE BASIS OF SUSPICION, CONJECTURES OR SURMISE. THE ADDITION THUS MADE PURELY ON THE BASIS OF THIRD - PARTY STATEMENT REC ORDED AT THE BACK OF THE ASSESSEE COULD NOT BE SUSTAINED IN THE EYES OF LAW UNLESS THE SAME ARE CONFRONTED TO THE ASSESSEE AND THE SAME ARE BACKED BY ANY CORROBORATIVE MATERIAL. NO EFFECTIVE INVESTIGATION IS SHOWN TO HAVE BEEN CARRIED OUT BY LD. AO TO DISL ODGE THE ASSESSEES CLAIM BY BRINGING ON RECORD COGENT EVIDENCES AS WELL AS CONFRONTING THE SAME. HOWEVER, EXCEPT FOR GENERAL ALLEGATIONS AS NARRATED IN THE INVESTIGATION WING REPORT, THERE IS NO EVIDENCE WHICH WOULD LINK ASSESSEES INVOLVEMENT IN JACKING UP THE PRICES OF THE SHARES WITH A VIEW TO EARN ARTIFICIAL GAINS. THE HONBLE APEX COURT IN M/S ANDAMAN TIMBER INDUSTRIES V/S CCE (CA NO.4228 OF 2006) HELD THAT NOT ALLOWING THE ASSESSEE TO CROSS - EXAMINE THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENT OF THOSE WITNESSES WERE MADE THE BASIS OF THE IMPUGNED 12 ORDER IS A SERIOUS FLAW WHICH MAKES THE ORDER NULLITY IN AS MUCH AS IT AMOUNTS TO VIOLATION OF PRINCIPAL OF NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTED. THE PRO POSITION THAT THAT ADDITIONS MERELY ON THE BASIS OF SUSPICIOUS, CONJECTURES OR SURMISES COULD NOT BE SUSTAINED IN THE EYES OF LAW STEM FROM THE DECISION OF HONBLE SUPREME COURT IN OMAR SALAY MOHAMED SAIT V/S CIT (1959 37 ITR 151) WHEREIN IT WAS HELD THAT THE SUSPICION HOWEVER STRONG COULD NOT PARTAKE THE CHARACTER OF LEGAL EVIDENCE AS HELD BY HONBLE SUPREME COURT IN UMACHARAN SHAW & BROS. V/S CIT (1959 37 ITR 271) . THE ADDITIONS MADE ON MERE PRESUMPTIONS COULD NOT BE SUSTAINED AND THERE MUST BE SOMETHING MORE THAN MERE SUSPICION TO SUPPORT THE ASSESSMENT AS PER THE DECISION OF HONBLE APEX COURT IN DHAKESHWARI COTTON MILLS LTD. V/S CIT (26 ITR 775) . THE ASSESSMENT SHOULD NOT BE BASED MEREL Y ON SUSPICION OR GUESS WORK BUT ON LEGITIMATE MATERIAL FROM WHICH R EASONABLE INFERENCE OF INCOME COULD HAVE BEEN DRAWN. 8 . ANOTHER ASPECT OF THE MATTER IS THAT THE ADDITIONS HAVE BEEN MADE U/S 68 WHICH WAS NOT APPLICABLE IN VIEW OF THE FACT THAT SALE TRANSACTIONS TOOK PLACE THROUGH RECOGNIZED STOCK EXCHANGE AND THE MONEY WAS RECEIVED IN SETTLEMENT THROUGH BANKING CHANNELS. THE ASSESSEE HAD DELIVERED THE SHARES FROM HER DEMAT ACCOUNT TO THE BROKER, WHO, IN TURN, PAID SALE CONSIDERATION TO THE ASSESSEE. THEREFORE, THE SOURCE OF CREDIT RECEIVED IN THE BANK ACCOUNT COULD NOT BE HELD TO BE UNEXPLAINED UNLESS IT WAS ESTABLISHED THAT ASSESSEES OWN MONEY WAS ROUTED IN HER BANK ACCOUNT IN THE GARB OF LTCG. 9 . WE FIND THAT ON IDENTICAL SET OF FACTS , SIMILAR ADDITION MADE BY REVENUE WAS DELETED BY COORDINATE BENCH OF THIS TRIBUNAL I N THE CASE OF 13 DIPESH RAMESH VARDHAN & ORS. V/S DCIT (ITA NOS.7648/MUM/2019 & ORS. DATED 11/08/2020 ; AUTHORED BY ONE OF US ) BY OBSERVING AS UNDER: - 6. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AND PERUSED RELEVANT MATERIAL ON RECORD. SO FAR AS THE FACTU AL MATRIX IS CONCERNED, THERE IS NO SUBSTANTIAL DISPUTE REGARDING THE SAME. THE PERUSAL OF RECORD WOULD REVEAL THAT THE ASSESSEE PURCHASED CERTAIN SHARES OF AN ENTITY NAMELY M/S STL AS EARLY AS SEPTEMBER, 2011. THE SHARES WERE CONVERTED INTO DEMAT FORM IN ASSESSEES ACCOUNT DURING THE MONTH OF MARCH, 2012. THE TRANSACTIONS TOOK PLACE THROUGH BANKING CHANNELS. THE INVESTMENTS WERE DULY REFLECTED BY THE ASSESSEE IN FINANCIAL STATEMENTS OF RESPECTIVE YEARS. THE COPIES OF FINANCIAL STATEMENTS OF M/S STL FOR FYS 2009 - 10 & 2010 - 11 WHICH LED TO INVESTMENT BY THE ASSESSEE IN THAT ENTITY WAS ALSO FURNISHED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. SUBSEQUENTLY, M/S STL GOT MERGED WITH ANOTHER ENTITY VIZ. M/S SAL PURSUANT TO SCHEME OF AMALGAMATION U/S 391 TO 394 OF THE COMPANIES ACT, 1956. THE SCHEME WAS DULY APPROVED BY HONBLE BOMBAY HIGH COURT VIDE ORDER DATED 22/03/2013, A COPY OF WHICH IS ON RECORD. CONSEQUENTLY, THE SHARES OF M/S STL HELD BY THE ASSESSEE GOT SWAPPED WITH THE SHARES OF M/S SAL AND NEW SHARES WE RE ALLOTTED TO THE ASSESSEE DURING JUNE, 2013 PURSUANT TO THE APPROVED SCHEME OF AMALGAMATION. M/S SAL IS STATED TO BE LISTED PUBLIC COMPANY GROUP A SHARES SIGNIFYING HIGH TRADES WITH HIGH LIQUIDITY. THE ASSESSEE HAS SOLD THESE SHARES THROUGH ITS STOCK B ROKER NAMELY M/S UNIQUE STOCKBRO PRIVATE LIMITED IN ONLINE PLATFORM OF THE RECOGNISED STOCK EXCHANGE DURING THE MONTH OF MARCH, 2014. THE SELLING PRICE WAS IN THE RANGE OF RS.489/ - TO RS.491/ - PER SHARE. THE TRANSACTIONS TOOK PLACE THROUGH ONLINE MECHANISM AFTER COMPLYING WITH ALL THE FORMALITIES AND PROCEDURE INCLUDING PAYMENT OF STT. THE DELIVERY OF THE SHARES WAS THROUGH CLEARING MECHANISM OF THE STOCK EXCHANGE AND SALE CONSIDERATION WAS RECEIVED THROUGH BANKING CHANNELS. THE TRANSACTIONS ARE DULY EVIDEN CED BY CONTRACT NOTES, DEMAT STATEMENTS, BANK STATEMENTS AND OTHER DOCUMENTARY EVIDENCES. THE KEY PERSON OF ASSESSEE GROUP, IN HIS STATEMENT, MAINTAINED THE POSITION THAT TRADING TRANSACTIONS WERE GENUINE TRANSACTIONS CARRIED OUT THROUGH STOCK EXCHANGE FOL LOWING ALL PROCESS AND LEGAL PROCEDURES. THE ASSESSEE ALSO FILED TRADING VOLUME DATA AND PRICE RANGE OF THE SCRIP FOR A PERIOD OF MORE THAN 2 YEARS I.E. FROM JAN, 2013 TO JULY, 2015. THE SHARES REFLECTED HEALTHY TRADING VOLUME AND THE PRICE RANGE REFLECTED THEREIN WAS IN THE RANGE OF RS.360/ - TO RS.600/ - PER SHARE. THE PRICE RANGE WAS STATED TO BE IN THE SAME RANGE FOR 15 MONTHS AFTER THE PERIOD OF SALE OF SHARES BY THE ASSESSEE, WHICH HAS NOT BEEN DISPUTED BY THE REVENUE. ON THE BASIS OF ALL THESE FACTS, I T COULD BE GATHERED THAT THE ASSESSEE HAD DULY DISCHARGED THE ONUS CASTED UPON HIM TO PROVE THE GENUINENESS OF THE STATED TRANSACTIONS AND THE ONUS HAD SHIFTED ON REVENUE TO REBUT THE SAME. 7. AS AGAINST THE ASSESSEES POSITION, THE PRIMARY MATERIAL TO MAK E ADDITIONS IN THE HANDS OF ASSESSEE IS THE STATEMENT OF SHRI VIPUL BHAT AND THE OUTCOME OF SEARCH PROCEEDINGS ON HIS ASSOCIATED ENTITIES INCLUDING M/S SAL. HOWEVER, THERE IS NOTHING ON RECORD TO ESTABLISH VITAL LINK BETWEEN THE ASSESSEE GROUP AND SHRI VIP UL BHAT OR ANY OF HIS GROUP ENTITIES. THE ASSESSEE, ALL ALONG, DENIED HAVING KNOWN SHRI VIPUL BHAT OR ANY OF HIS GROUP ENTITIES. HOWEVER, NOTHING HAS BEEN BROUGHT ON RECORD TO CONTROVERT THE SAME AND ESTABLISH THE LINK BETWEEN SHRI VIPUL BHAT AND THE ASSES SEE. THE OPPORTUNITY TO CROSS - EXAMINE SHRI VIPUL BHAT WAS NEVER PROVIDED TO THE ASSESSEE WHICH IS CONTRARY TO THE DECISION OF HONBLE SUPREME COURT IN M/S ANDAMAN TIMBER INDUSTRIES V/S CCE (CA NO.4228 OF 2006) WHEREIN IT WAS HELD 14 THAT NOT ALLOWING THE ASSE SSEE TO CROSS - EXAMINE THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENT OF THOSE WITNESSES WERE MADE THE BASIS OF THE IMPUGNED ORDER IS A SERIOUS FLAW WHICH MAKES THE ORDER NULLITY IN AS MUCH AS IT AMOUNTS TO VIOLATION OF PRINCIPAL OF NATURA L JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTED. THE WHOLE BASIS OF MAKING THE ADDITION IS THIRD PARTY STATEMENT WITHOUT THERE BEING ANY TANGIBLE MATERIAL. IT IS TRITE LAW THAT ADDITIONS MERELY ON THE BASIS OF SUSPICIOUS, CONJECTURES OR SURM ISES COULD NOT BE SUSTAINED IN THE EYES OF LAW AS HELD BY HONBLE SUPREME COURT IN OMAR SALAY MOHAMED SAIT V/S CIT (1959 37 ITR 151). THE SUSPICION HOWEVER STRONG COULD NOT PARTAKE THE CHARACTER OF LEGAL EVIDENCE AS HELD BY HONBLE SUPREME COURT IN UMACHAR AN SHAW & BROS. V/S CIT (1959 37 ITR 271) . THEREFORE, WE FIND THAT ONUS AS CASTER UPON REVENUE TO CORROBORATE THE IMPUGNED ADDITIONS BY CONTROVERTING THE DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE AND BY BRINGING ON RECORD, ANY COGENT MATERIAL TO SUST AIN THOSE ADDITIONS, COULD NOT BE DISCHARGED BY THE REVENUE. THE ALLEGATION OF PRICE RIGGING / MANIPULATION HAS BEEN LEVIED WITHOUT ESTABLISHING THE VITAL LINK BETWEEN THE ASSESSEE AND VARIOUS ENTITIES OF SHRI VIPUL BHAT. WE FIND THAT THE WHOLE BASIS OF MA KING ADDITIONS IS THIRD PARTY STATEMENT AND NO OPPORTUNITY OF CROSS - EXAMINATION HAS BEEN PROVIDED TO THE ASSESSEE TO CONFRONT THE SAID PARTY. AS AGAINST THIS, THE ASSESSEES POSITION THAT THAT THE TRANSACTIONS WERE GENUINE AND DULY SUPPORTED BY VARIOUS DOC UMENTARY EVIDENCES, COULD NOT BE DISTURBED BY THE REVENUE. 8. THE ALLEGATIONS OF LD.AO THAT THE ASSESSEE WAS PART OF THE GROUP WHICH INDULGED IN RIGGING OR MANIPULATION OF PRICES OF SHARES IN CONNIVANCE WITH SHRI VIPUL BHAT IS NOT BACKED BY ANY INDEPEND ENT MATERIAL. FIRSTLY, THERE IS NOTHING ON RECORD WHICH ESTABLISHES THE FACT THAT THE ASSESSEE WAS ACQUAINTED WITH SHRI VIPUL BHAT OR ANY OF HIS ENTITIES AND SECONDLY, THE ONUS CASTED UPON ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTIONS WAS ALREADY D ISCHARGED BY THE ASSESSEE. SHRI VIPUL BHAT, IN HIS STATEMENT, STATED THAT ONE SHRI SANDEEP MAROO ACTED AS INTERMEDIARY WHO INTRODUCED VARDHAN FAMILY TO HIM. HOWEVER, NO FURTHER INVESTIGATIONS HAVE BEEN CARRIED OUT TO ESTABLISH THIS VITAL LINK BETWEEN THE A SSESSEE AND SHRI VIPUL BHAT. WE DO NOT FIND ANY INDEPENDENT INVESTIGATIONS BY LD. AO TO BRING ON RECORD ANY TANGIBLE MATERIAL TO CORROBORATE THE SAME. THERE ARE NO EVIDENT OR EVEN ALLEGATION OF ANY CASH EXCHANGE BETWEEN THE ASSESSEE AND GROUP ENTITIES OF S HRI VIPUL BHAT. THIS IS FURTHER EVIDENCED BY THE FACT THAT NO SUBSTANTIAL INCRIMINATING MATERIAL / WEALTH OF THAT MAGNITUDE HAS BEEN FOUND DURING THE COURSE OF SEARCH OPERATIONS ON ASSESSEE WHICH WOULD CORROBORATE SUCH PRESUMPTION AND PROVE THAT THE TRANSA CTIONS WERE SHAM TRANSACTIONS, IN ANY MANNER. 9. THE FACT THAT THE ASSESSEE COULD NOT PRODUCE THE CONCERNED PERSON OF M/S SAL WAS RIGHTLY CONTROVERTED BY SUBMITTING THAT THE AFORESAID ENTITY WAS NOT UNDER THE CONTROL OF THE ASSESSEE AND THE ASSESSEE WAS U NDER NO OBLIGATION TO DO SO. THE EXISTENCE OF M/S SAL IS BEYOND DOUBT SINCE IT WAS A LISTED CORPORATE ENTITY AND SECONDLY, IT WAS SUBJECT MATTER OF SCHEME OF AMALGAMATION U/S 391 TO 394. THE SCHEME OF AMALGAMATION WAS DULY BEEN APPROVED BY HONBLE BOMBAY H IGH COURT. THEREFORE, THE EXISTENCE OF THE SAID ENTITY COULD NOT BE DOUBTED, IN ANY MANNER. 10. THE ABOVE CONCLUSION IS FURTHER FORTIFIED BY THE FACT THAT IN SHARE SALE TRANSACTIONS THROUGH ONLINE MODE, THE IDENTITY OF THE BUYER OF THE SHARES WOULD NOT B E KNOWN TO THE ASSESSEE. THEREFORE, THE ADVERSE CONCLUSION DRAWN BY LD. AO MERELY ON THE BASIS OF THE FACT THAT THE BUYER OF THE SHARES WERE GROUP ENTITIES OF SHRI VIPUL BHAT, COULD NOT BE SUSTAINED. THE FACT THAT THERE WERE INDEPENDENT BUYERS ALSO WOULD R EBUT THE SAME AND WEAKEN THE CONCLUSION DRAWN BY LD. AO. 15 11. THE LD. AR HAS RELIED ON PLETHORA OF JUDICIAL PRONOUNCEMENTS IN SUPPORT OF VARIOUS SUBMISSIONS, WHICH WE HAVE DULY CONSIDERED. THESE DECISIONS WOULD ONLY SUPPORT THE CONCLUSIONS DRAWN BY US THAT ONCE THE ASSESSEE HAS DISCHARGED THE ONUS OF PROVING THE GENUINENESS OF THE TRANSACTIONS, THE ONUS WOULD SHIFT ON THE REVENUE TO DISLODGE ASSESSEES CLAIM AND BRING ON RECORD CONTRARY EVIDENCES TO REBUT THE SAME. UNTIL AND UNLESS THIS EXERCISE IS CARRIED OUT, THE ADDITIONS COULD NOT BE SUSTAINED IN THE EYES OF LAW. 12. TO ENUMERATE THE FEW, THE HONBLE BOMBAY HIGH COURT IN CIT V/S SHYAM S.PAWAR (54 TAXMANN.COM 108 10/12/2014) DECLINED TO ADMIT REVENUES APPEAL SINCE THE REVENUE FAILED TO CARRY FORWARD THE INQUIRY TO DISCHARGE THIS BASIC ONUS. THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN MUKESH R.MAROLIA V/S ADDL. CIT (6 SOT 247 15/12/2005) HELD THAT PERSONAL KNOWLEDGE AND EXCITEMENT ON EVENTS SHOULD NOT LEAD THE ASSESSING OFFICER TO A STATE OF AFFAIRS WHERE S ALIENT EVIDENCES ARE OVER - LOOKED. WHEN EVERY TRANSACTION HAS BEEN ACCOUNTED, DOCUMENTED AND SUPPORTED, IT WOULD BE VERY DIFFICULT TO BRUSH ASIDE THE CONTENTIONS OF THE ASSESSEE THAT HE HAD PURCHASED SHARES AND HAD SOLD SHARES AND ULTIMATELY PURCHASED A FLA T UTILIZING THE SALE PROCEEDS OF THOSE SHARES AND THEREFORE, THE CO - ORDINATE BENCH CHOSE TO DELETE THE IMPUGNED ADDITIONS. WE FIND THAT THIS DECISION WAS FIRSTLY BEEN APPROVED BY HONBLE BOMBAY HIGH COURT VIDE ITA NO. 456 OF 2007 ON 07/09/2011 AND THEREAFT ER, SPECIAL LEAVE PETITION AGAINST THE SAID DECISION HAS BEEN DISMISSED BY HONBLE SUPREME COURT VIDE SLP NO. 20146 OF 2012 DATED 27/01/2014 WHICH IS REPORTED AS 88 CCH 0027 SCC. THE SMC BENCH OF TRIBUNAL IN ANRAJ HIRALAL SHAH (HUF) V/S ITO (ITA NO. 4514/M UM/2018 DATED 16/07/2019) HELD THAT IN THE ABSENCE OF ANY EVIDENCE TO IMPLICATE THE ASSESSEE OR TO PROVE THAT THE TRANSACTIONS WERE BOGUS, THE LONG - TERM CAPITAL GAINS DECLARED BY THE ASSESSEE COULD NOT BE DOUBTED WITH. THIS CASE WAS DEALING WITH GAINS EARN ED BY THE ASSESSEE ON SALE OF SAME SCRIP I.E. M/S SUNRISE ASIAN LTD. 13. THEREFORE, CONSIDERING THE ENTIRETY OF FACTS AND CIRCUMSTANCES, WE ARE NOT INCLINED TO ACCEPT THE STAND OF LD.CIT(A) IN SUSTAINING THE IMPUGNED ADDITIONS IN THE HANDS OF THE ASSESSEE. RESULTANTLY, THE ADDITION ON ACCOUNT OF ALLEGED LONG - TERM CAPITAL GAINS AS WELL AS ESTIMATED COMMISSION AGAINST THE SAME, STANDS DELETED. THE GROUNDS OF APPEAL, TO THAT EXTENT, STAND ALLOWED. THE FACTS AS WELL AS ISSUES ARE PARI - MATERIA THE SAME IN THE PRESENT APPEAL. NO DISTINGUISHING FEATURE COULD BE POINTED OUT BY THE REVENUE. IN VIEW OF THE FORGOING, IT COULD VERY WELL BE SAID THAT ONUS CASTED UPON REVENUE TO CORROBORATE THE IMPUGNED ADDITIONS BY CONTROVERTING THE DOCUMENTARY EVIDENCES FURNISHED BY T HE ASSESSEE AND BY BRINGING ON RECORD, ANY COGENT MATERIAL TO SUSTAIN THOSE ADDITIONS, COULD NOT BE DISCHARGED BY THE REVENUE. THE WHOLE BASIS OF MAKING ADDITIONS IS THIRD PARTY STATEMENT AND NO OPPORTUNITY OF CROSS - EXAMINATION HAS BEEN 16 PROVIDED TO THE ASS ESSEE TO CONFRONT THE SAID PARTIES. AS AGAINST THIS, THE ASSESSEES POSITION THAT THAT THE TRANSACTIONS WERE GENUINE AND DULY SUPPORTED BY VARIOUS DOCUMENTARY EVIDENCES, COULD NOT BE DISTURBED BY THE REVENUE. 10 . FINALLY, GOING BY THE FACTUAL MATRIX AND R ESPECTFULLY FOLLOWING THE EARLIER VIEW OF COORDINATE BENCH IN THE CITED ORDER , WE ARE OF THE CONSIDERED OPINION THAT THE ADDITIONS THUS MADE BY LD. AO AND CONFIRMED BY LD. CIT(A) ARE NOT SUSTAINABLE IN THE EYES OF LAW. THEREFORE, WE ARE INCLINED TO DELETE THE SAME. CONSEQUENTIALLY, THE ADDITION OF ESTIMATED COMMISSION ALSO STANDS DELETED. THE GROUND STAND ALLOWED ACCORDINGLY. 11. GROUND NUMBERS 3 & 4 ARE RELATED TO LEVY OF INTEREST AS WELL AS INITIATION OF PENALTY. THE SAME BEING MANDATORY AND CONSEQUENTIA L IN NATURE WOULD NOT REQUIRE ANY SPECIFIC ADJUDICATION ON OUR PART. 12. RESULTANTLY, T HE APPEAL STAND PARTLY ALLOWED IN TERMS OF OUR ABOVE ORDER. O RDER PR ONOUNCED IN THE OPEN COURT ON 03 RD FEBRUARY, 2021. SD / - SD/ - ( AMARJIT SINGH ) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 03/02/2021 S R.PS , JAISY VARGHESE / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE 17 / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMB AI .