Tarun Kumar Goyal , Hyderabad V. Asst. Commissioner of Income Tax, Central Circle-3(1)2, Hyderabad

ITA 457/Hyd/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6317 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 01-02-2021
• Assessment Year: 2016-2017
• Appeal Filed On: 25-08-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SIBENDU MOHARANA
• Assessee Lawyers: P.MURALI MOHANA RAO
• Keywords: Reopening of assessment; Unexplained investment; Loose papers; Document seized; Opportunity of cross examination; Source of fund; Question of law; Third party statement; Accommodation entries; Tax effect; Retraction; Penny stocks; Capital Gains; Bogus
• Section: 68; 69; 143(3); 153A; 133(6); 143(1); 13; 22; 101; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 456/HYD/20 2014 - 15 SRI TARUN KUMAR GOYAL ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3(2), HYDERABAD 457/HYD/20 2016 - 17 458/HYD/20 2016-17 SRI ARUN KUMAR GOYAL FOR ASSESSEE : SHRI P.MURALI MOHANA RAO, AR FOR REVENUE : SHRI SIBENDU MOHARANA, DR DATE OF HEARING : 01-02-2021 DATE OF PRONOUNCEMENT : 20-04-2021 O R D E R PER S.S.GODARA, J.M. : THE INSTANT THREE APPEALS PERTAIN TO TWO ASSESSEES, S/SHRI TARUN KUMAR GOYAL AND ARUN KUMAR GOYAL FOR AYS.2014-15 & 2016-17. THE FORMER ASSESSEES APPEAL S ITA NOS.456 & 457/HYD/2020 ARISE AGAINST THE CIT(A)-11, HYDERABADS SEPARATE ORDERS, BOTH DATED 31-01-2020 (AYS.2014-15 & 2016-17) PASSED IN CASE NOS.10252 & 10255/2018-19 FOLLOWED BY A LATTER ASSESSEES APPEAL ITA NO.458/HYD/2020 FOR AY.2016-17 DIRECTED AGAINST THE VERY CIT(A)S ORDER; OF EVEN DATE, PASSED IN CASE NO.102 53/2018-19, INVOLVING PROCEEDINGS U/S.143(3) R.W.S.153A OF THE I NCOME TAX ACT, 1961 [IN SHORT, THE ACT]; (IN ALL CASES), RESPEC TIVELY. HEARD BOTH THE PARTIES. CASE FILES PERUSED. ITA NOS. 456, 457 & 458/HYD/2020 :- 2 -: 2. WE PROCEED APPEAL-WISE FOR THE SAKE OF CONVENIENC E AND BREVITY. THE FORMER ASSESSEES IN APPEAL ITA NO.456 /HYD/2020 CHALLENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION TREATING HIS LONG TERM CAPITAL GAIN CLAIM OF RS.73,89, 650/- AS BOGUS ALONGWITH 30% ALLEGED COMMISSION CHARGES THEREU PON TO THE TUNE OF RS.2,21,690/-; RESPECTIVELY. THE CIT(A) S DETAILED DISCUSSION CONFIRMING THE ASSESSING OFFICERS ACTION TO THIS EFFECT READS AS UNDER: 5.2 I HAVE CONSIDERED THE ASSESSMENT ORDER AND SUB MISSIONS OF THE APPELLANT. IT IS SEEN FROM THE ASSESSMENT ORDER THA T THE ADDITION MADE IS ON ESTIMATE BASIS @1% ON TOTAL PURCHASES MA DE DURING THE YEAR W.R.T THE TRANSACTIONS IN COMMODITY TRADING. T HE ADDITION MADE IS BASED, ON ASSUMPTIONS AND PRESUMPTIONS OF THE AO AND IS NOT BACKED BY ANY MATERIAL EVIDENCE. FURTHER, THE ADDIT ION IN SEARCH ASSESSMENT BASED ON ESTIMATION WITHOUT BEING BACKED BY MATERIAL EVIDENCE DO NOT STAND THE TEST OF LAW. IN VIEW OF T HE FACTUAL AND LEGAL POSITION AS DISCUSSED ABOVE, THE ADDITION MADE IS N OT WARRANTED AND THE SAME IS DELETED. 6. GROUND NOS. 10 TO 21 ARE AGAINST THE ADDITION OF RS.73,89,650F - ON ACCOUNT OF CAPITAL GAINS CLAIMED U/S.L0(38) OF T HE I.T ACT. THE AO MADE ADDITION OF RS.2,21,690/- ON ACCOUNT OF ALLEGE D COMMISSION FOR PROVIDING ENTRIES FOR CAPITAL GAINS @3% OF EXEMPT C APITAL GAINS. THE AO EXAMINED THE ISSUE OF CLAIM OF CAPITAL GAINS. EX EMPTION U/S.10(38) AT LENGTH. THE AO DISCUSSED VARIOUS FACE TS OF THE FACTS RELATED TO THE TRANSACTION IN THE ORDER. THE ISSUE IS DISCUSSED IN P~RA- 9.0 TO PARA 12.0 OF THE ORDER. THE AO BROUGHT OUT T HE SEBI ORDER ON MANIPULATION IN TRANSACTIONS IN 'PENNY STOCKS', UNR EALISTIC CIRCUMSTANCES AS TO THE TRANSACTION, PURCHASE PRICE , SUDDEN INCREASE IN SHARE PRICE OF M/S.KAILASH AUTO FINANCE LTD, WHI CH IS NOT COMMENSURATE WITH FINANCIAL RESULTS, UNREALISTIC RE TURNS, THE ROLE OF OPERATORS IN ARRANGING SUCH TRANSACTIONS IN DETAIL. THE FINDINGS OF THE AO ARE BACKED BY RESULTS OF SUSTAINED INVESTIGATION , WHICH ARE BROUGHT OUT IN THE ORDER. 6.1 DURING THE APPELLATE PROCEEDINGS, AR CONTENDED AS UNDER: ITA NOS. 456, 457 & 458/HYD/2020 :- 3 -: 3. THE AO ERRED IN THE TRANSACTIONS WHICH ARE ROUTE D THROUGH PROPER BANKING CHANNELS AND IN APPRECIATING THE FACT THAT ASSESSEE TRADED THE C01NL1WDITIES THROUGH RECOGNIZED STOCK EXCHANGE : 7.1. IN RELATION TO COMMODITIES EXCHANGE IT IS TO S UBMIT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE FILED COPIES OF CONFIRMATION, BANK STATEMENT, COPY OF THE ITR, COPY OF FINANCIAL STATEMENT OF THE PARTIES ETC. SO THESE EVIDENCES CO NFIRM THAT THE TRANSACTIONS ARE ROUTED THROUGH PROPER BANKING CHAN NEL. 7.2. THE COMMODITIES 'WERE TRADED THROUGH A STOCK B ROKER, M/S. RAJGHARANA COMMODITIES TRADE PVT. LTD, REGISTERED M EMBER OF MCX/NCDEX THAT IT IS TO SUBMIT THAT THE STOCK BROKE R HAD ISSUED THE CONTRACT NOTE IN PROPER FORM GIVING SETTLEMENT NUMB ER, TRADE TIME, TRADE NUMBER, AMOUNT OF CIT AND OTHER DETAILS. THE ASSESSEE ALSO RECEIVED THE PAYMENT RELATING TO THE COMMODITIES SO LD FROM THE BROKER AFTER DEDUCTION OF CTT. ONCE THE TRANSACTION IS ROUTED THROUGH A REGISTERED BROKER IN A RECOGNIZED COMMODITIES EXC HANGE (MCX/NCD EX) WITH DUE SUFFERING OF CTT AND WHICH ARE ALSO DU LY COVERED BY THE REQUISITE DOCUMENTATION, THE GENUINENESS AND CREDIB ILITY OF THE SAME CANNOT BE QUESTIONED. THE ASSESSEE HAD DULY SHOWN T HAT TRANSACTION WERE DONE THROUGH BANKING CHANNELS RIGHT FROM PURCH ASE TO SALE OF COMMODITIES AND ALL THE TRANSACTION HAVE BEEN ROUTE D THROUGH DMAT ACCOUNT SOLD IN THE MCX/NCDEX AS PER QUOTED PRICE A S ON THAT DATE (COPY OF THE DOCUMENTS ARE ENCLOSED VIDE PAPER BOOK PAGE NO.17- 72,131132). 7.3. FURTHER IT WOULD BE SUBMITTED THAT THE DOCUMEN TS RELATING TO PURCHASE AND SALE OF COMMODITIES HAVE NEITHER BEEN CONTROVERTER NOR DISPROVED BY THE ASSESSING OFFICER. THE A.O. MERELY ON THE BASIS OF INFORMATION FROM INVESTIGATION WING AND WITHOUT ANY CORROBORATIVE EVIDENCE NOR MAKING ANY ENQUIRY FURTHER FOR THE JUS TIFICATION OF ADDITIONS. THE REPORT OF INVESTIGATION WING COULD N OT BE SOLE GROUND TO IMPLICATE ASSESSEE AND JUSTIFY ADDITIONS ESPECIALLY WHEN, NOWHERE ASSESSEE HAD BEEN FOUND TO BE BENEFICIARY OF ANY KI ND OF ACCOMMODATION ENTRY IN. ANY INQUIRY BY INVESTIGATIO N WING OR ANY SUCH MATERIAL HAD BEEN UNEARTHED BY DEPARTMENT IN T HE COURSE OF SEARCH OPERATION. IT WOULD BE THE RESPONSIBILITY OF THE BROKER TO ENS URE THAT THE TRANSACTION IS PROPERLY ROUTED AND CTT WAS PAID AS PER STOCK EXCHANGE NORMS. IT WAS ALSO STATED THAT IN THE SECO NDARY MARKET TRANSACTIONS, NO ONE KNOWS WHO THE BUYER IS AND WHO THE SELLER OF THE COMMODITIES IS. WHEN THE ASSESSEE SOLD HIS COMM ODITIES, SEVERAL OTHER PERSONS ALSO TRANSACTED IN THESE COMMODITIES ON MCX/NCDEX AT PRICES SIMILAR TO THE PRICE AT WHICH THE ASSESSE E SOLD HIS HOLDING. ITA NOS. 456, 457 & 458/HYD/2020 :- 4 -: 7.A. THE ASSESSEE HAS SUBMITTED THE FOLLOWING INFOR MATION IN SUPPORT OF THE GENUINENESS OF TRANSACTIONS: > CONTRACT NOTE FOR THE SALE OF COMMODITIES THROUGH A REGISTERED STOCK BROKER WITH BSE. > CIT HAD BEEN DULY SUFFERED ON THE SALE TRANSACTIO NS. 7.5. IN THIS REGARDS, RELIANCE IS TO BE PLACED ON T HE FOLLOWING CASE LAWS :- SMT. SARITA DEVI VS ITO, TA.NO.1228/HYD/2016, WHE REIN IT WAS HELD THAT: 10.1 ASSESSEES HAVE FURNISHED THE NECESSARY INFORM ATION OF PURCHASE BILLS, SALE BILLS, LEDGER ACCOUNTS, DE-MAT ACCOUNT COPIES IN SUPPORT OF TRANSACTIONS. SINCE THERE IS NO OTHER IN FORMATION SO AS TO COME TO CONCLUSION THAT THE TRANSACTIONS ENTERED BY THE ASSESSEE ARE BOGUS, THESE ARE TO BE ACCEPTED AS TRANSACTIONS ENT ERED IN NORMAL COURSE. THE ENQUIRY FROM THE NSE THAT M/S. ALLIANCE INTERMEDIARIES AND NET WORK P. LID; IS NOT A BROKER OR SUBBROKER D OES NOT ESTABLISH THAT THE TRANSACTIONS WITH THAT COMPANY IS BOGUS. M OREOVER, AS FAR AS SMT. SARITA DEVI IS CONCERNED, THE PURCHASE TRANSAC TIONS MOSTLY PERTAIN TO LONG TERM CAPITAL GAINS AND HAVE BEEN EN TERED IN EARLIER YEAR AND HAVE BEEN RECORDED AS ON 31.03.2006. A.O. EVEN THOUGH HAS REOPENED THE ASSESSMENT IN THAT YEAR ALSO, MUCH BEFORE THIS ASSESSMENT WAS REOPENED, THE SAID PROCEEDINGS WERE DROPPED WITHOUT TAKING ANY ADVERSE VIEW. CONSEQUENTLY, THE PURCHASES SHOWN IN THAT YEAR IN T HE BALANCE SHEET HAS TO BE ACCEPTED AS GENUINE AND SUBSEQUENT SALE T HEREON CANNOT BE CONSIDERED AS BOGUS, ON PRESUMPTIONS AND ASSUMPT IONS. IN VIEW OF THAT WE HAVE NO HESITATION IN HOLDING THAT THE C APITAL GAINS DECLARED BY THE ASSESSEE SHOULD BE ASSESSED AS CAPI TAL GAINS ONLY. 11. AS SEEN FROM THE ORDERS, THE A.O. HAS TREATED T HE ENTIRE SALE CONSIDERATION RECEIVED AS BOGUS AND BROUGHT TO TAX THE ENTIRE AMOUNT AS STATED TO HAVE COMMUNICATED TO HIM. THE LD. CIT( A) EXAMINED THIS ASPECT AND GAVE FINDING THAT THE TRANSACTIONS IN TH E CASE' OF SMT. SARITA DEVI ARE NOT TO THE EXTENT OF RS.2.20 CRORES AND RESTRICTED THE SALE AMOUNT TO THE EXTENT OF RS.90.75 LAKHS CORRECT LY. SHE ALSO GAVE CORRECT FINDING THAT THE ENTIRE GROSS RECEIPTS CANN OT BE BROUGHT TO TAX AND ONLY THE GAIN CAN BE TAXED. SIMILARLY IN THE CASE OF MS. NITIKA ALSO, THE CORRE CT AMOUNT WAS DETERMINED AND AMOUNT TO BE TAXED WAS THE SHORT TER M CAPITAL GAIN RECEIVED BY ASSESSEE. TO THAT EXTENT FINDINGS OF LD . CIT(A) ARE CORRECT. IT IS TO BE NOTED THAT THE REVENUE HAS NOT COME IN APPEAL ON THAT ITA NOS. 456, 457 & 458/HYD/2020 :- 5 -: ASPECT. THEREFORE, ONLY ISSUE TO BE CONSIDERED IS W ITH THE DIRECTION OF THE CIT(A) TO TAX THE SAID AMOUNTS AS 'INCOME FROM OTHER SOURCES'. FOR THE REASONS STATED ABOVE, WE ARE NOT IN AGREEMENT W ITH THE ACTION OF THE A.O. EITHER FOR REOPENING OF ASSESSMENT OR FOR TREATING THE TRANSACTIONS AS BOGUS, SINCE THE VERY BASIS FOR REO PENING THE ASSESSMENT 'WAS NOT PROVIDED TO THE ASSESSEE NOR AN OPPORTUNITY WAS GIVEN TO CROSS-EXAMINE THE SO CALLED MR. CHOKSH I. THERE IS NO BASIS FOR TREATING THE SAID TRANSACTIONS AS NOT GEN UINE. CONSIDERING TILE DOCUMENTS PLACED ON RECORD AND THE CASE LAW RE LIED, WE HAVE NO HESITATION IN DIRECTING THE A.O. TO ACCEPT THE LONG TERM CAPITAL GAINS AND SHORT TERM CAPITAL GAINS DECLARED BY SMT. SARIT A DEVI AND SHORT TERM CAPITAL GAINS DECLARED BY MS. NITIKA KUMARI UN DER THE HEAD 'CAPITAL GAINS' ONLY. THE GROUNDS ARE ACCORDINGLY A LLOWED.' DECISION OF HON'BLE CALCUTTA ITAT IN THE CASE OF VIDHI MALHOTRA VS ITO [2019] 101 TAXMANN.CONT 361 (DELHI - TRIB.) WHE RE IN IT WAS HELD THAT- 'ASSESSEE HAD PURCHASED AND SOLD SHARES OF A COMPAN Y WHICH AMALGAMATED INTO ANOTHER COMPANY (KAILASH) BY ORDER OF HIGH COURT - ASSESSING OFFICER NOTICED THAT SCRIPS OF KAILASH WE RE USED BY ENTRY PROVIDERS FOR PROVIDING BOGUS ACCOMMODATION ENTRIES AND THAT IN SOME OTHER MATTER IN COURSE OF PROCEEDINGS BEFORE I NVESTIGATION WING, ONE CHARTERED ACCOUNTANT HAD CONFIRMED THAT HE HAD PROVIDED ACCOMMODATION ENTRIES IN SCRIP OF KAILASH AND, CONS EQUENTLY, HE TREATED LONG-TERM CAPITAL GAIN' UNDER SECTION 69 AS SESSEE HAD DULY SHOWN TRANSACTION IN CHEQUES RIGHT FROM PURCHASE TO SALE OF SHARES AND ALL TRANSACTIONS HAD BEEN ROUTED THROUGH DMAT A CCOUNT IN BOMBAY STOCK EXCHANGE AS PER QUOTED PRICE AS ON THA T DATE - SEBI DID NOT FIND ANY PRIMA FACIE MATERIAL FOR MANIPULAT ION IN PRICE OF SCRIP OF KAILASH - FURTHER, STATEMENT OF CHARTERED ACCOUN TANT COULD NOT BE SALE GROUND TO IMPLICATE ASSESSEE AND JUSTIFY ADDIT IONS ESPECIALLY WHEN; NOWHERE ASSESSEE HAD BEEN FOUND TO BE BENEFIC IARY OF ANY KIND OF ACCOMMODATION ENTRY IN ANY INQUIRY BY INVES TIGATION WING OR ANY SUCH MATERIAL HAD BEEN UNEARTHED BY DEPARTMENT - WHETHER, ON FACTS, LONG-TERM CAPITAL GAIN SHOWN BY ASSESSEE WAS GENUINE AND, CONSEQUENTLY LIABLE FOR EXEMPTION UNDER SECTION 10( 38) - HELD, YES [PARA 8]' DECISION OF HON'BLE CALCUTTA HIGH COURT IN TILE, CASE OF CIT VS CARBO INDUSTRIAL HOLDINGS LTD REPORTED IN 244 JTR 422 (CA L) WHEREIN IT WAS HELD 'THE TRIBUNAL ALLOWED THE CLAIM ON THE GROUND THAT FULL DETAILS OF THE TRANSACTIONS AS ALSO THE NAMES AND ADDRESSES OF THE BROKERS HAVING BEEN FURNISHED, THE ASSESSEE'S CLAIM COULD NOT BE D ENIED ON THE BASIS OF MERE SUSPICION REGARDING GENUINENESS OF THE TRAN SACTIONS,' ITA NOS. 456, 457 & 458/HYD/2020 :- 6 -: DECISION OF THE ITAT- KOLKATA, IN THE CASE OF SRI DOLARRAI HEMANI VS. ITO, KOLKATA VIDE ITA NO. 19/KOI/2014, WHERE IN IT WAS HELD THAT '.. THE ADDITION HAS BEEN MADE ONLY ON THE BASIS OF THE SUSPICION THAT THE DIFFERENCE IN PURCHASE AND SALE PRICE OF T HESE SHARES IS UNUSUALLY HIGH- THE REVENUE HAD NOT BROUGHT ANY MAT ERIAL ON RECORD TO SUPPORT ITS FINDING THAT THERE HAS BEEN COLLUSIO N /CONNIVANCE BETWEEN THE BROKER AND THE ASSESSEE FOR THE INTRODU CTION OF ITS UNACCOUNTED MONEY. IN VIEW OF THE AFORESAID FACTS A ND FINDINGS AND THE JUDICIAL PRECEDENTS RELIED UPON, 'WE HAVE NO HE SITATION IN DIRECTING THE LD AO TO ACCEPT THE CLAIM OF EXEMPTION OF LTCG OF THE ASSESSEE ARISING OUT OF SALE OF SHARES OF G.K.CONSULTANTS LT D AND ACCORDINGLY ALLOW THE GROUND RAISED BY THE ASSESSEE IN THIS REG ARD', 7.6. IT IS PERTINENT TO MENTION HERE THAT, AS PER T HE INTENT OF THE ABOVE SECTION, THE ASSESSING OFFICER CANNOT MAKE ADDITION U/S 69 OF ACT IF THE ASSESSEE PROVES: IDENTITY CREDITWORTHINESS AND GENUINENESS OF TRANSACTION, IN THE PRESENT CASE, AO HAS MADE AN ADDITION OF RS. 28,48,439/- AND RS.2,21,690/TOWARDS UNEXPLAINED INVESTMENT U/E 69 O F THE ACT, EVEN THOUGH ALL THE ABOVE MENTIONED CONDITIONS ARE SATIS FIED. 7.7. WE WOULD LIKE TO PLACE OUR RELIANCE ON THE FOL LOWING CASE LAWS :- KLR INDUSTRIES LIMITED VS DCIT 1480/HYD/2014, JUD GMENT OF HON'BLE SUPREME COURT OF INDIA:- 'WHEREIN THE HON'BLE JURISDICTIONAL ITAT HAS HELD. THAT ONCE THE ASSESSEE HAS PROVIDE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE CREDITOR, NO ADDITION U/S 68 OF THE ACT CAN BE MADE IN THE HANDS OF THE ASSESSEE. COMMISSIONER OF INCOME TAX VS LOVELY EXPORTS (P) LTD (2008) 216 CTR (SC) 195, WHERE IN THE SUPREME COURT HELD THAT IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHAREHOLDERS, WHOSE NAMES ARE GI VEN TO THE AO, THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN TH EIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW, BUT IT CANNOT B E REGARDED AS UNDISCLOSED INCOME OF ASSESSEE COMPANY. 7.8. THEREFORE, IN VIEW OF THE ABOVE DETAILS AND SU BMISSIONS, IT IS VERY CLEAR THAT THE ASSESSEE HAS ESTABLISHED THE ID ENTITY OF THE STOCK ITA NOS. 456, 457 & 458/HYD/2020 :- 7 -: BROKER, COMPANY IN WHICH THE COMMODITIES ARE BOUGHT & SOLD ALONG WITH THE GENUINENESS OF THE TRANSACTIONS AND CREDIT WORTHINESS. THEREFORE, THE ADDITION OF RS.28,48,439/- TOWARDS S ALE OF COMMODITIES CANNOT BE MADE IN THE HANDS OF ASSESSEE AS UNEXPLAINED INVESTMENTS U/S 69 OF THE ACT AND THE A SSESSEE HAS PROVED ALL THE REQUIRED FIELD U/S 69 OF THE ACT. HE NCE ADDITION MADE BY THE A 0 IS REQUIRED TO BE DELETED. 8. WRONGFUL DISALLOWANCE OF LONG TERM CAPITAL GAINS AND MAKING ADDITION U/S.68 OF RS.73,89,650/-(GROUND 13-14,16,1 8): 8.1. IN RELATION TO SALE OF SHARES IN STOCK EXCHANG E IT IS TO SUBMIT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE FILED COPIES OF CONFIRMATION; BANK STATEMENT, COPY OF THE ITR, COPY OF FINANCIAL STATEMENT OF THE PARTIES ETC. SO THESE EV IDENCES CONFIRM THAT THE TRANSACTIONS ARE ~OUTED THROUGH PROPER BANKING CHANNEL. 8.2. THE COMMODITIES WERE TRADED THROUGH A STOCK BR OKER, M/S. HSE SECURITIES LTD; REGISTERED MEMBER OF STOCK EXCHANGE THAT IT IS TO SUBMIT THAT THE STOCK BROKER HAD ISSUED THE CONTRAC T NOTE IN. PROPER FORM GIVING SETTLEMENT NUMBER, TRADE TIME, TRADE NU MBER, AMOUNT OF STT AND OTHER DETAILS. THE ASSESSEE ALSO RECEIVED T HE PAYMENT RELATING TO THE SHARES SOLD FROM THE BROKER AFTER D EDUCTION OF STT. ONCE THE TRANSACTION IS ROUTED THROUGH A REGISTERED BROKER IN A RECOGNIZED STOCK EXCHANGE (BSE) WITH DUE SUFFERING OF STT AND WHICH ARE ALSO DULY COVERED BY THE REQUISITE DOCUMENTATIO N, THE GENUINENESS AND CREDIBILITY OF THE SAME CANNOT BE Q UESTIONED. THE ASSESSEE HAD DULY SHOWN THAT TRANSACTION WERE DONE THROUGH BANKING CHANNELS RIGHT FROM PURCHASE TO SALE OF SHA RES AND ALL THE TRANSACTION HAVE BEEN ROUTED THROUGH DMAT ACCOUNT S OLD IN THE BOMBAY STOCK EXCHANGE AS PER QUOTED PRICE AS 011 TH AT DATE (COPY OF THE DOCUMENTS ARE ENCLOSED VIDE PAPER BOOK PAGE NO.73-128,131- 132). 8.3. FURTHER IT WOULD BE SUBMITTED THAT THE DOCUMEN TS RELATING TO PURCHASE AND SALE OF SHARES HAVE NEITHER BEEN CONTR OVERTER NOR DISPROVED BY THE ASSESSING OFFICER. THE A.O. MERELY ON THE BASIS OF INFORMATION FROM INVESTIGATION WING AND WITHOUT ANY CORROBORATIVE EVIDENCE NOR MAKING ANY ENQUIRY FURTHER FOR THE JUS TIFICATION OF ADDITIONS. THE REPORT OF INVESTIGATION WING COULD N OT BE SALE GROUND TO IMPLICATE ASSESSEE AND JUSTIFY ADDITIONS ESPECIALLY WHEN, NOWHERE ASSESSEE HAD BEEN FOUND TO BE BENEFICIARY OF ANY KI ND OF ACCOMMODATION ENTRY IN ANY INQUIRY BY INVESTIGATION WING OR ANY SUCH MATERIAL HAD BEEN UNEARTHED BY DEPARTMENT IN T HE COURSE OF SEARCH OPERATION. ITA NOS. 456, 457 & 458/HYD/2020 :- 8 -: IT WOULD BE THE RESPONSIBILITY OF THE BROKER TO ENS URE THAT THE TRANSACTION IS PROPERLY ROUTED AND SIT WAS PAID AS PER STOCK EXCHANGE NORMS. IT WAS ALSO STATED THAT IN THE SECO NDARY MARKET TRANSACTIONS, NO ONE KNOWS WHO THE BUYER IS AND WHO THE SELLER OF THE SHARES IS. WHEN THE ASSESSEE SOLD HIS SHARES, S EVERAL OTHER PERSONS ALSO TRANSACTED IN THESE SHARES ON STOCK EX CHANGE AT PRICES SIMILAR TO THE PRICE AT WHICH THE ASSESSEE SOLD HIS HOLDING. 8.4. THE ASSESSEE HAS SUBMITTED THE FOLLOWING INFOR MATION IN SUPPORT OF THE GENUINENESS OF TRANSACTIONS: CONTRACT NOTE FOR THE SALE OF COMMODITIES THROUGH A REGISTERED- STOCK BROKER WITH BSE. STT HAD BEEN DILLY SUFFERED ON THE SALE TRANSACTION S. 8.5. IN THIS REGARDS, RELIANCE IS TO BE PLACED ON T HE FOLLOWING CASE LAWS :- SMT. SARITA DEVI VS ITO, ITA.NO.1228/HYD/2016, WH EREIN IT WAS HELD THAT: '10.1 ASSESSEES HAVE FURNISHED THE NECESSARY INFORM ATION OF PURCHASE BILLS, SALE BILLS, LEDGER ACCOUNTS, DE-MAT ACCOUNT COPIES IN SUPPORT OF TRANSACTIONS. SINCE THERE IS NO OTHER IN FORMATION SO AS TO COME TO CONCLUSION THAT THE TRANSACTIONS ENTERED BY THE ASSESSEE ARE BOGUS, THESE ARE TO BE ACCEPTED AS TRANSACTIONS ENT ERED IN NORMAL COURSE. THE ENQUIRY FROM THE NSE THAT M/S. ALLIANCE INTERMEDIARIES AND NET WORK P. LTD., IS NOT A BROKER OR SUBBROKER DOES NOT ESTABLISH THAT THE TRANSACTIONS WITH THAT COMPANY IS BOGUS. M OREOVER, AS FAR AS SMT. SARITA DEVI IS CONCERNED, THE PURCHASE TRANSAC TIONS MOSTLY PERTAIN TO LONG TERM CAPITAL GAINS AND HAVE BEEN EN TERED IN EARLIER YEAR AND HAVE BEEN RECORDED AS ON 31.03.2006. A.O. EVEN THOUGH HAS REOPENED THE ASSESSMENT IN THAT YEAR ALSO, MUCH BEFORE THIS ASSESSMENT WAS REOPENED, THE SAID PROCEEDINGS WERE DROPPED WITHOUT TAKING ANY ADVERSE VIEW. CONSEQUENTLY, THE PURCHASES SHOWN IN THAT YEAR IN T HE BALANCE SHEET HAS TO BE ACCEPTED AS GENUINE AND SUBSEQUENT SALE T HEREON CANNOT BE CONSIDERED AS BOGUS, ON PRESUMPTIONS AND ASSUMPT IONS. IN 'VIEW OF THAT WE HAVE NO HESITATION IN HOLDING THAT THE C APITAL GAINS DECLARED BY THE ASSESSEE SHOULD BE ASSESSED AS CAPI TAL GAINS ONLY. 11. AS SEEN FROM THE ORDERS, THE A.O. HAS TREATED T HE ENTIRE SALE CONSIDERATION RECEIVED AS BOGUS AND BROUGHT TO TAX THE ENTIRE AMOUNT AS STATED TO HAVE COMMUNICATED TO HIM. THE LD. CIT (A) EXAMINED THIS ASPECT AND GAVE FINDING THAT THE TRANSACTIONS IN TH E CASE OF SMT. SARITA DEVI ARE NOT TO THE EXTENT OF RS.2.20 CRORES AND RESTRICTED THE SALE AMOUNT TO THE EXTENT OF RS.90.75 LAKHS CORREC TLY. SHE ALSO GAVE ITA NOS. 456, 457 & 458/HYD/2020 :- 9 -: CORRECT FINDING THAT THE ENTIRE GROSS RECEIPTS CANN OT BE BROUGHT TO TAX AND ONLY THE GAIN CAN BE TAXED. SIMILARLY IN THE CASE OF MS. NITIKA ALSO, THE CORRE CT AMOUNT WAS DETERMINED AND AMOUNT TO BE TAXED WAS THE SHORT TER M CAPITAL GAIN RECEIVED BY ASSESSEE. TO THAT EXTENT FINDINGS OF LD . CIT(A) ARE CORRECT. IT IS TV BE NOTED THAT THE REVENUE HAS NOT COME IN APPEAL ON THAT ASPECT. THEREFORE, ONLY ISSUE TO BE CONSIDERED IS W ITH THE DIRECTION OF THE CIT(A) TO TAX THE SAID AMOUNTS AS 'INCOME FROM OTHER SOURCES'. FOR THE REASONS STATED ABOVE, WE ARE NOT IN AGREEMENT W ITH THE ACTION OF THE A.O. EITHER FOR REOPENING OF ASSESSMENT OR FOR TREATING THE TRANSACTIONS AS BOGUS, SINCE THE VERY BASIS FOR REO PENING THE ASSESSMENT WAS NOT PROVIDED TO THE ASSESSEE NOR AN OPPORTUNITY WAS GIVEN TO CROSS-EXAMINE THE SO CALLED MR. CHOSHI. TH ERE IS NO BASIS FOR TREATING THE SAID TRANSACTIONS AS NOT GENUINE. CONS IDERING THE DOCUMENTS PLACED ON RECORD AND THE CASE LAW RELIED, WE HAVE NO HESITATION IN DIRECTING THE A.O. TO ACCEPT THE LONG TERM CAPITAL GAINS AND SHORT TERM CAPITAL GAINS DECLARED BY SMT. SARIT A DEVI AND SHORT TERM CAPITAL GAINS DECLARED BY MS. NITIKA KUMARI UN DER THE HEAD 'CAPITAL GAINS' ONLY. THE GROUNDS ARE ACCORDINGLY A LLOWED.' DECISION OF HON'BLE CALCUTTA IT AT IN THE CASE OF VIDHI MALHOTRA VS ITO [2019] 101 TAXMANN.COM 361 (DELHI - TRIB.) WHER E IN IT WAS HELD THAT- 'ASSESSEE HAD PURCHASED AND SOLD SHARE, OF A COMPAN Y WHICH AMALGAMATED INTO ANOTHER COMPANY (KAILASH) BY ORDER OF HIGH COURT - ASSESSING OFFICER NOTICED THAT SCRIPS OF KAILASH WE RE USED BY ENTRY PROVIDERS FOR PROVIDING BOGUS ACCOMMODATION ENTRIES AND THAT IN SOME OTHER MATTER IN COURSE OF PROCEEDINGS BEFORE I NVESTIGATION WING, ONE CHARTERED ACCOUNTANT HAD CONFIRMED THAT HE HAD PROVIDED ACCOMMODATION ENTRY IN SCRIP OF KAILASH AND, CONSEQ UENTLY, HE TREATED LONG-TERM CAPITAL GAIN UNDER SECTION 69 ASS ESSEE HAD DULY SHOWN TRANSACTION IN CHEQUES RIGHT FROM PURCHASE TO SALE OF SHARES AND ALL TRANSACTIONS HAD BEEN ROUTED THROUGH DMAT A CCOUNT IN BOMBAY STOCK EXCHANGE AS PER QUOTED PRICE AS ON THA T DATE - SEBI DID NOT FIND ANY PRIMA FACIE MATERIEL FOR MANIPULAT ION IN PRICE OF SCRIP OF KAILASH - FURTHER, STATEMENT OF CHARTERED ACCOUN TANT COULD NOT BE SOLE GROUND TO IMPLICATE ASSESSEE AND JUSTIFY ADDIT IONS ESPECIALLY WHEN, NOWHERE ASSESSEE HAD BEEN FOUND TO BE BENEFIC IARY OF ANY KIND OF ACCOMMODATION ENTRY IN ANY INQUIRY BY INVES TIGATION WING OR ANY SUCH MATERIAL HAD BEEN UNEARTHED BY DEPARTMENT - WHETHER, ON FACTS, LONG-TERM CAPITAL GAIN SHOWN BY ASSESSEE WAS GENUINE AND, CONSEQUENTLY LIABLE FOR EXEMPTION UNDER SECTION 10( 38) - HELD, YES [PARA 8]' ITA NOS. 456, 457 & 458/HYD/2020 :- 10 -: DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CA SE OF CIT US CARBO INDUSTRIAL HOLDINGS LTD REPORTED IN 244 ITR 422 (CA L) WHEREIN IT WAS HELD 'THE TRIBUNAL ALLOWED THE CLAIM ON THE GROUND THAT FULL DETAILS OF THE TRANSACTIONS AS ALSO THE NAMES AND ADDRESSES OF THE BROKERS HAVING BEEN FURNISHED, THE ASSESSEE'S CLAIM COULD NOT BE D ENIED ON THE BASIS OF MERE SUSPICION REGARDING GENUINENESS OF THE TRAN SACTIONS. DECISION OF THE ITAT- KOLKATA, IN THE CASE OF SRI DOLARRAI HEMANI VS. ITO, KOLKATA VIDE ITA NO.19/KOL/2014, WHERE IN IT W AS HELD THAT ' THE ADDITION HAS BEEN MADE ONLY ON THE BASIS OF T HE SUSPICION THAT THE DIFFERENCE IN PURCHASE AND SALE PRICE OF THESE SHARES IS UNUSUALLY HIGH. THE REVENUE HAD NOT BROUGHT ANY MATERIAL ON R ECORD TO SUPPORT ITS FINDING THAT THERE HAS BEEN COLLUSION/CONNIVANC E BETWEEN THE BROKER AND THE ASSESSEE FOR THE INTRODUCTION OF ITS UNACCOUNTED MONEY. IN VIEW OF THE AFORESAID FACTS AND FINDINGS AND THE JUDICIAL PRECEDENTS RELIED UPON, WE HAVE NO HESITATION IN DI RECTING THE LD AO TO ACCEPT THE CLAIM OF EXEMPTION OF LTCG OF THE ASS ESSEE ARISING OUT OF SALE OF SHARES OF GK.CONSULTANTS LTD AND ACCORDI NGLY ALLOW THE GROUND RAISED BY THE ASSESSEE IN THIS REGARD'. 8.6. IT IS PERTINENT TO MENTION HERE THAT, AS PER T HE INTENT OF THE ABOVE SECTION, THE ASSESSING OFFICER CANNOT MAKE ADDITION U/E 68 OF ACT IF THE ASSESSEE PROVES ; IDENTITY CREDITWORTHINESS AND GENUINENESS OF TRANSACTION. IN THE PRESENT CASE, AO HAS MADE AN ADDITION OF RS. 73,89,650/- TOWARDS UNEXPLAINED INVESTMENT U/S 68 OF THE ACT, E VEN THOUGH ALL THE ABOVE MENTIONED CONDITIONS ARE SATISFIED. 8.7. WE WOULD LIKE TO PLACE OUR RELIANCE ON THE FOL LOWING CASE LAWS ;- KLR INDUSTRIES LIMITED VS DCIT 1480/HYD/2014, JUD GMENT OF HON'BLE SUPREME COURT OF INDIA :- 'WHEREIN THE HON'BLE JURISDICTIONAL ITAT HAS HELD ' THAT ONCE THE ASSESSEE HAS PROVIDE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE CREDITOR, NO ADDITION U/S 68 OF THE ACT CAN BE MADE IN THE HANDS OF THE ASSESSEE. COMMISSIONER OF INCOME TAX VS LOVELY EXPORTS (P) LTD (2008) 216 CTR (SC) 195, WHERE IN THE SUPREME COURT HELD THAT IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHAREHOLDERS, WHOSE NAMES ARE GI VEN TO THE AO, ITA NOS. 456, 457 & 458/HYD/2020 :- 11 -: THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN TH EIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW, BUT IT CANNOT B E REGARDED AS UNDISCLOSED INCOME OF ASSESSEE COMPANY. 8.8. FURTHER IT IS TO SUBMIT THAT, WHEN THE ASSESSI NG OFFICER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SHOW THAT THE ASS ESSEE HAS PAID OVER AND ABOVE THE PURCHASE CONSIDERATION AS CLAIME D AND EVIDENT FROM THE BANK ACCOUNT THEN, IN THE ABSENCE OF ANY E VIDENCE IT CANNOT BE HELD THAT THE ASSESSEE HAS INTRODUCED HIS OWN UN ACCOUNTED MONEY BY WAY OF BOGUS LONG-TERM CAPITAL GAIN. 8.9. IT IS ALSO BROUGHT ON RECORD FOR YOUR KIND REF ERENCE THAT SEBI VIDE ITS ORDER DATED 21ST SEPTEMBER 2017 HAS REVOKED THE BAN ON KAILASH AUTO FINANCE LTD. PARA 5 OF THE SAID ORDER READS AS UNDER PURSUANT TO THE INTERIM ORDER, SEBI CONDUCTED A DE TAILED INVESTIGATION INTO THE ROLE OF VARIOUS ENTITIES IN PRICE MANIPULATION IN THE SCRIP OF KAILASH AUTO SO AS TO ASCERTAIN THE VI OLATION OF SECURITIES LAWS. UPON COMPLETION OF INVESTIGATION BY SEBI, INV ESTIGATION DID NOT FIND ANY ADVERSE EVIDENCE/ADVERSE FINDINGS IN RESPE CT OF VIOLATION OF PROVISIONS OF THE PFUTP REGULATIONS IN RESPECT OF T HE FOLLOWING 244 ENTITIES (AGAINST WHOM DIRECTIONS WERE ISSUED VIDE THE INTERIM ORDER AND/OR CONFIRMATORY ORDERS) WARRANTING CONTINUATION OF ACTION UNDER SECTION 11B/R/W11 (4) OF THE ACT. THE DETAILS OF TH E 244 ENTITIES ARE AS FOLLOWS. AND VIDE PARA 8 OF THE ORDER THERE IS DIRECTION OF REVOCATION. THUS, SEBI ALSO DID NOT FIND ANY PRIMA FACIE MATERIAL FOR MANIPULATION OF PRICE OF SCRIP OF KAILASH AUTO FINANCE LIMITED. FUR THER IT IS TO SUBMIT THAT IF A.O. HAS FOUND THAT SCRIP WAS USED FOR ACCO MMODATION ENTRY THEN HE SHOULD HAVE INDEPENDENTLY ENQUIRED PRIMA FA CIE THAT WHETHER ASSESSEE'S NAME WAS TOO INVOLVED IN THE BUYERS OF A CCOMMODATED ENTRIES. IT IS TO SUBMIT THAT ONCE SEBI HAS HELD TH AT THERE WAS NO ADVERSE MATERIAL OR EVIDENCE TO SHOW THAT THE SCRIP WAS MANIPULATED AND RESTRAINT OF TRADE ON SAME HAS BEEN REVOKED, IT IS TO OBSERVE THAT THE SHARE PRICES HAVE BEEN DEDUCED GENUINELY AND SH ARES HAVE BEEN SOLD FOR GENUINELY QUOTED PRICE AND THUS SALE PROCE EDS OF THE SAME AS ACCOUNTED IN THE BOOKS OF ACCOUNTS STANDS EXPLAINED . 8.10. FURTHER IT IS TO SUBMIT THAT MERELY ON THE ST ATEMENT OF SOME THIRD PARTY WHO THE ASSESSEE NEVER KNEW EVEN AND AS THE STATEMENT OF THE THIRD PARTY WAS RECORDED BEHIND THE BACK OF THE ASSESSEE AND TOAS NEVER ALLOWED TO CROSS EXAMINE NOR IT WAS FURN ISHED TO THE ASSESSEE, THE SAME CANNOT BE RELIED UPON AND CAN BE USED AGAINST THE ASSESSEE. EVEN IF PRESUMING STATEMENTS DO HAVE ADVERSE INFERENCE AGAINST THE ASSESSEE, THEY CANNOT BE RELI ED UPON AND IN SUPPORT OF THESE VIEW RELIANCE IS PLACED 011 THE HO N'BLE SUPREME COURT JUDGEMENT OF ANDAMAN TIMBER INDUSTRIES IN CIV IL APPEAL NO. 4228 OF 2006. ITA NOS. 456, 457 & 458/HYD/2020 :- 12 -: 8.11. THEREFORE, IN VIEW OF THE ABOVE DETAILS AND S UBMISSIONS, IT IS VERY CLEAR THAT THE ASSESSEE HAS ESTABLISHED THE ID ENTITY OF THE STOCK BROKER, COMPANY IN WHICH THE SHARES ARE BOUGHT & SO LD ALONG WITH THE GENUINENESS OF THE TRANSACTIONS AND CREDITWORTH INESS. THEREFORE, THE ADDITION OF RS. 73,89,650/- TOWARDS SALE OF SHA RES CANNOT BE MADE IN THE HANDS OF ASSESSEE AS UNEXPLAINED INVEST MENTS U/S 68 OF THE ACT AND THE ASSESSEE HAS PROVED ALL THE REQUIRE D FIELD U/S 68 OF THE ACT. HENCE ADDITION MADE BY THE AO IS REQUIRED TO BE DELETED. GROUND NO.20: 9. NON-OPPORTUNITY FOR CROSS EXAMINATION OF WITNESS : THE AO ERRED IN NOT AFFORDING PROPER OPPORTUNITY OF CROSS EXAMINING THE PERSON AS MENTIONED IN ASSESSMENT ORDER, ON WHI CH THE AO RELIED UPON FOR MAKING ADDITION OF ACCOMMODATION ENTRIES F OR COMMODITIES AND SHARES WHICH IS AGAINST TO THE PRINCIPLES OF NA TURAL JUSTICE AND THUS THE ASSESSMENT DESERVES TO BE ANNULLED, WHICH VIEW IS SUPPORTED BY THE CASE LAW IN THE CASE OF SUNITHA DA DDAA VS. DCIT, CENTRAL CIRCLE-(2), JAIPUR, VIDE SLP OF THE HON'BLE SUPREME COURT. IN VIEW OF THE FACTS SUBMITTED ABOVE, IT IS THEREFO RE REQUESTED THE LD. COMMISSIONER OF INCOME TAX (APPEALS), TO ANNUL THE ASSESSMENT AND TO DELETE THE ADDITION MADE. 6.2) I HAVE CONSIDERED THE ASSESSMENT ORDER, SUBMIS SIONS OF THE APPELLANT AND THE MATERIAL PLACED BEFORE ME. THE AD DITION MADE REFERS TO SEIZED MATERIAL WHICH IS THE BASIS FOR TH E ADDITION MADE BY THE ASSESSING OFFICER. THE MODUS OPERANDI AS BROUGH T OUT AND STATEMENTS RECORDED DURING THE COURSE OF INVESTIGAT ION IN THE CASES INVOLVING 'PENNY STOCKS' HAVE BEEN REFERRED TO IN T HE ORDER TO BEING OUT THE BIGGER PICTURE WHERE MANIPULATIONS ON LARGE SCA LE ARE INVOLVED. THE BACK GROUND OF THE COMPANIES WHERE INVESTIGATIO N IS MADE, THEIR PROMOTERS, OPERATORS IN THE SHARES OF THE ABA E COM PANIES ARE NOT ONLY RELEVANT BUT HAVE TO BE CONSIDERED TO UNDERSTA ND THE REAL NATURE OF THE TRANSACTIONS UNDERTAKEN BY THE APPELLANT. TH E MANIPULATION IN THE PRICE OF SHARES OF THESE COMPANIES IS WELL ESTA BLISHED. THE SERIES OF TRANSACTIONS IN THE ABOVE SCRIP WHICH WERE INDUL GED IN TO BRING UNEXPLAINED MONEY INTO THE BOOKS OF ACCOUNT IN A CA MOUFLAGED WAY IS VERY WELL DOCUMENTED IN SERIES OF CASES. 6.3) THE HON'BLE ITAT, PUNE BENCH IN THEIR ORDER IN ITA NOS. 1648 TO 1652/PUN/2015, DT.04.01.2019 IN THE CASE OF RAJKUMA R B. AGARWAL VS. DCIT DEALT WITH THE ISSUE OF CAPITAL GAINS ON S ALE OF SHARES OF M S.PRRANETA INDUSTRIES LTD. HELD AS UNDER: '12. WE HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE RELEVANT MATERIAL ON RECORD. IT IS SEEN THAT THE ASSESSEE CL AIMED TO HAVE ITA NOS. 456, 457 & 458/HYD/2020 :- 13 -: EARNED SHORT TERM CAPITAL GAIN OF RS.22,02,745/- IN RESPECT OF SALE OF SHARES OF PIL WHICH WERE PURCHASED FOR A PALTRY SUM OF RS.75,197/- AND SOLD FOR RS.22,77,943/-. THE AO, ON VERIFICATIO N OF THE CREDENTIALS OF PIL AND OTHER ATTENDING CIRCUMSTANCE S, OBSERVED THAT PIL WAS INCLUDED IN THE LIST OF PENNY STOCK COMPANI ES IN ENQUIRIES CONDUCTED BY BSE AND SEBI, WHOSE PRICES WERE MANIPU LATED. THE LD. AR WAS REQUESTED TO PLACE ON RECORD THE BALANCE SHE ET OF PIL FOR VERIFYING THE FINDINGS OF ID. CIT(A) OF A VERY HIGH PIE RATIO OF THE SHARES OF PIL, WHOSE SHARES WITH RE.1/- FACE VALUE RAISED SHARPLY FROM THE BOTTOM LEVEL OF 0.31 PAISE TO RS.21.10 PAI SE WITH MULTIPLE OF 300 TIMES. THE LD. AR COULD NOT PLACE ON RECORD COP Y OF BALANCE SHEET OF PIL. M/S DSP SHARES AND SECURITIES LTD. AND M/S GALAXY BRAKING LTD. WERE LINED VIDE SEBI ORDERS DATED 22.9.2012 AN D 24.09.212 FOR MANIPULATING THE PRICES OF PIL. THE BROKER FROM WHO M THE ASSESSEE ALLEGEDLY PURCHASED THE SHARES OF PIL NAMELY, M/S. VIJAY BHAGWANDAS & COMPANY WAS VISITED WITH PENALTIES VID E SEBI ORDERS DATED 26-06-2009 31-08-2009, 26-11-2009 ETC. FOR MANIPULATING THE PRICES OF VARIOUS SHARES. THEY WER E DEBARRED FROM ACTING AS A SHARE BROKER VIDE ORDER DT. 24.1.20006 PASSED BY THE SEBI. THEN THE ASSESSEE CLAIMED TO HAVE SOLD THE SH ARES OF PIL TO MIS MACY SECURITIES PVT. LTD. THIS COMPANY WAS ALSO WAR NED BY SEBI VIDE ORDERS DATED 02-05-2011 AND 02-06-2011 FOR MAN IPULATING THE PRICES OF DIFFERENT SHARES. ALL SUCH DETAILS HAVE B EEN INCORPORATED IN THE IMPUGNED ORDER, WHICH HAVE NOT BEEN CONTROVERTE D ON BEHALF OF THE ASSESSEE. IT IS FURTHER RELEVANT TO NOTE THAT T HE AO REQUIRED THE ASSESSEE TO FURNISH CERTAIN DETAILS INCLUDING DEMAT ACCOUNT FOR THE SHARES OF PIL. THE ASSESSEE MISERABLY FAILED TO PLA CE SUCH DETAILS EXCEPT FOR TRANSACTIONS FROM 29-06-2005 TO 30-06-20 05 AND 04-07- 2005 TO 07-07-2005. THE ENTIRE POSITION WHICH THUS EMERGES IS THAT PIL IS A PENNY STOCK COMPANY, WHICH FACT GOT ESTABL ISHED FROM ENQUIRIES CONDUCTED BY BSE AND SEBI. NOT ONLY THE D SP SHARES AND SECURITIES LTD. AND GALAXY BRAKING LTD. WERE FINED FOR MANIPULATING THE PRICES OF SHARES OF PILI EVEN THE BROKER FROM W HOM THE ASSESSEE ALLEGEDLY PURCHASED THE SHARES WAS SUSPENDED AND DE BARRED FROM ACTING AS A BROKER BY SEBI AND FURTHER THE BROKER T O WHOM SUCH SHARES WERE SOLD, WAS ALSO WARNED BY SEBI FOR MANIP ULATING THE PRICES OF DIFFERENT SHARES DURING THE RELEVANT PERI OD. THERE IS DOUBT THAT THE ASSESSEE COMPLETED PAPER-TRAIL BY PRODUCIN G CONTRACT NOTES FOR THE PURCHASE AND SALE OF SHARES OF PIL. IN OUR CONSIDERED OPINION, MERE FURNISHING OF CONTRACT NOTES ETC. AND MORE SPE CIFICALLY WHEN SEEN IN THE BACKGROUND OF THE ABOVE NOTED FACTS, DO ES NOT INSPIRE ANY CONFIDENCE AND CANNOT BE A GROUND TO DELETE AN ADDI TION, WHICH IS OTHERWISE MADE ON THE SOLID BEDROCK OF DETAILED ENQ UIRIES. 6.4) AT THIS JUNCTURE, IT WILL NOT BE OUT OF PLACE TO REFER TO THE JUDGMENT OF THE HON'BLE SUPREME COURT IN CIT VS. DURGA PRASA D MORE (1971) 82 ITR 540 (SQ, IN WHICH THE ASSESSEE CLAIMED BEFORE T HE ITO THAT ITA NOS. 456, 457 & 458/HYD/2020 :- 14 -: INCOME OF CERTAIN PROPERTY SHOULD NOT BE TAXED IN H IS HANDS AS IT WAS A TRUST PROPERTY. THE ITO REJECTED THE CLAIM AND IN CLUDED THE INCOME IN THE HANDS OF THE ASSESSEE. THE TRIBUNAL AFFIRMED THE DECISION OF THE ITO, WHICH WAS REVERSED BY THE HON'BLE HIGH COU RT. REVERSING THE VERDICT OF THE HON'BLE HIGH COURT, THEIR LORDSHIPS NOTICED THAT THOUGH THE ASSESSEE MADE A CLAIM THAT INCOME OF THE PROPER TY WAS NOT HIS AND PRODUCED CONVEYANCE EXECUTED IN HIS FAVOUR AND THE DEED OF SETTLEMENT EXECUTED BY HIS WIFE, NEARLY ABOUT A YEA R AFTER THE CONVEYANCE, HOWEVER, WHEN THE ITO ASKED THE ASSESSE E ABOUT THE SOURCE FROM WHICH HIS WIFE GOT THE AMOUNT, APART FR OM SAYING THAT IT WAS 'STHRIDHAN' PROPERTY, HE FAILED TO DISCLOSE ANY SOURCE FROM WHICH HIS WIFE COULD HAVE GOT THE AMOUNT FOR PURCHASING T HE PREMISES. IN THIS BACKDROP OF FACTS, THE HON'BLE SUPREME COURT H ELD THAT ALTHOUGH THE APPARENT MUST BE CONSIDERED AS REAL, BUT, IF TH ERE ARE REASONS TO BELIEVE THAT THE APPARENT IS NOT REAL, AS IS THE CA SE UNDER CONSIDERATION AS WELL, THEN THE APPARENT SHOULD BE IGNORED TO UNEARTH THE HARSH REALITY. 6.5) SIMILAR VIEW HAS BEEN CANVASSED IN SUMATI DAYA L VS. CIT (1995) 214 ITR 801 (SC). THE QUESTION FOR CONSIDERATION IN THAT CASE WAS WHETHER THE ASSESSEE PURCHASED WINNING TICKETS AFTE R THE EVENT. IT WAS OBSERVED THAT IN ALL CASES IN WHICH A RECEIPT I S SOUGHT TO BE TAXED AS INCOME, THE BURDEN LIES ON THE DEPARTMENT TO PROVE THAT IT IS WITHIN THE TAXING PROVISION AND IF A RECEIPT IS IN THE NATURE OF INCOME, THE BURDEN OF PROVING THAT IT IS NOT TAXABLE BECAUS E IT FALLS WITHIN EXEMPTION PROVIDED BY THE ACT, LIES UPON THE ASSESS EE. BUT, IN VIEW OF SECTION 68, WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF THE ASSESSEE FOR ANY PREVIOUS YEAR THE SAME MAY BE CHAR GED TO INCOME- TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR IF THE EXPLANATION OFFERED BY THE ASSESSEE ABOUT THE NATUR E AND SOURCE THEREOF IS, IN THE OPINION OF THE ASSESSING OFFICER , NOT SATISFACTORY. IN DECIDING THE ISSUE AGAINST THE ISSUE, THEIR LORDSHI PS HELD THAT: 'APPARENT MUST BE CONSIDERED REAL UNTIL IT IS SHOWN THAT THERE ARE REASONS TO BELIEVE THAT THE APPARENT IS NOT THE REA L AND THAT THE TAXING AUTHORITIES ARE ENTITLED TO LOOK INTO THE SU RROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY AND THE MATTE R HAS TO BE CONSIDERED BY APPLYING THE TEST OF HUMAN PROBABILIT IES'. THIS SHOWS THAT A DECISION BASED ON THE ATTENDING CIRCUMSTANCE S AND HUMAN PROBABILITIES DOES NOT GET VITIATED IF THERE ARE CO MPELLING REASONS TO REJECT THE FRONTAGE OF A TRANSACTION BASED ON THE S O-CALLED EVIDENCE, WHICH IS NOTHING MORE THAN A MERE PAPER WORK. 6.6) THE HON'BLE DELHI HIGH COURT IN ITA NO.220/201 9 IN THE CASE OF MR. UDIT KALRA VS. ITO IN THEIR ORDER DT. 08.03.201 9 HELD AS UNDER: 'THE MAIN THRUST OF THE ASSESSEE'S ARGUMENT IS THAT HE WAS DENIED THE RIGHT TO CROSS-EXAMINATION OF THE TWO INDIVIDUA LS WHOSE ITA NOS. 456, 457 & 458/HYD/2020 :- 15 -: STATEMENTS LED TO THE INQUIRY AND ULTIMATE DISALLOW ANCE OF THE LONG TERM CAPITAL GAIN CLAIM IN THE RETURNS WHICH ARE TH E SUBJECT MATTER OF THE PRESENT APPEAL. THIS COURT HAS CONSIDERED THE SUBMISSIONS OF THE PA RTIES. ASIDE FROM THE FACT THAT THE FINDINGS IN THIS CASE ARE ENTIREL Y CONCURRENT - A.O., CIT(A) AND THE ITAT HAVE ALL CONSISTENTLY RENDERED ADVERSE FINDINGS - WHAT IS INTRIGUING IS THAT THE COMPANY (M/S KAPPAC PHARMA LID.) HAD MEAGRE RESOURCES AND IN FACT REPORTED CONSISTENT LO SSES. IN THESE CIRCUMSTANCES, THE ASTRONOMICAL GROWTH OF THE VALUE OF COMPANY'S SHARES NATURALLY EXCITED THE SUSPICIONS OF THE REVE NUE. THE COMPANY WAS EVEN DIRECTED TO BE DELISTED FROM THE STOCK EXC HANGE. HAVING REGARD TO THESE CIRCUMSTANCES AND PRINCIPALLY ON TH E GROUND THAT THE FINDINGS ARE ENTIRELY OF FACT, THIS COURT IS OF THE OPINION THAT NO SUBSTANTIAL QUESTION OF LAW ARISES IN THE PRESENT A PPEAL. 6.7) CONSIDERING THE FACT THAT THE FACTS AND CIRCUM STANCES OF THE CASE ARE SIMILAR. IT IS HELD THAT THE ASSESSING OFFICER RIGHTLY CONCLUDED THAT THE CLAIM OF EXEMPTION U/S.10(38) TO BE INCORRECT A ND CORRECTLY ASSESSED THE INCOME U/S.68. FURTHER. THE MANIPULATI ONS AS BROUGHT OUT ABOVE INVOLVES PAYMENT OF COMMISSION ALSO. THE ADDITION ON ACCOUNT OF COMMISSION IS ALSO CONFIRMED. THE GROUND S RAISED ARE REJECTED. 3. BOTH THE LOWER AUTHORITIES CASE IN NUTSHELL IS THAT THE IMPUGNED CAPITAL GAINS CLAIMED AT ASSESSEES BEHEST AR E VERY MUCH BOGUS AS PER THE DEPARTMENTAL INVESTIGATION INDICATI NG MUCH A BIGGER PICTURE PINPOINTING SCRIP PRICE(S) RIG GING IN COLLUSION WITH ENTRY OPERATORS BASED IN VARIOUS CITI ES. THE ASSESSEES PLEA ON THE OTHER HAND AS PER ITS DETAILED P APER BOOK RUNNING INTO 132 PAGES IS BASED ON VOLUMINOUS E VIDENCE I.E., LEDGER COPIES IN THE BOOKS OF M/S.RAJGHARANA COMMODITIES TRADE PVT. LTD., FOR AY.2013-14, CONTRACT NO TES OF SALES AND PURCHASE COPIES WITH THE VERY PARTY SIMILA R EVIDENCE WITH M/S.HSE SECURITIES LIMITED FOR AY.2013-14, THEI R LEDGER COPIES FOLLOWED BY TRANSACTIONS DONE THROUGH BANKING C HANNEL ONLY. THERE IS NO REBUTTAL TO ALL THIS VOLUMINOUS EVI DENCE COMING FROM REVENUE SIDE DURING THE COURSE OF HEARI NG. IT ITA NOS. 456, 457 & 458/HYD/2020 :- 16 -: ALSO FAILS TO DISPUTE THAT THE IMPUGNED ADDITION(S) IS B ASED ON CIRCUMSTANTIAL THAN ACTUAL EVIDENCE. AND ALSO THAT NO E NTRY OPERATOR TILL DATE HAS NAMED THE ASSESSEE IN ANY INVES TIGATION CARRIED OUT BY THE DEPARTMENT OR SEBI; WHATSOEVER. COMI NG TO ALL THE CASE LAW QUOTED IN CIT(A)S ORDER (SUPRA), WE FIND THAT HON'BLE DELHI HIGH COURTS LATEST DECISION IN ITA NO.1 25/2020, DT.15-01-2021 IN PCIT VS. SMT. KRIHNA DEVI HAS DECLIN ED REVENUES IDENTICAL ARGUMENTS AS FOLLOWS: 5. IT IS NOT IN DISPUTE, AS NOTED IN THE IMPUGNED ORDER, THAT THE FACTUAL BACKGROUND IN ALL THE THREE APPEALS IS QUIT E SIMILAR. HOWEVER, FOR THE SAKE OF CONVENIENCE, THE FACTS IN RESPECT O F ITA 125/2020 ARE BEING NOTED AND DISCUSSED ELABORATELY. BRIEFLY STAT ED, THE RESPONDENT-ASSESSEE IS AN INDIVIDUAL WHO HAS DERIVE D INCOME FROM INTEREST ON LOAN, FDR, NSC AND BANK INTEREST UNDER THE HEAD OF INCOME FROM OTHER SOURCES IN RESPECT OF A.Y. 2015 -16. SHE FILED HER RETURN OF INCOME, DECLARING TOTAL INCOME OF RS.13,9 6,116/-. AFTER CLAIMING DEDUCTION OF RS. 1,60,000/- UNDER CHAPTER VI-A, THE TOTAL TAXABLE INCOME OF RESPONDENT WAS DECLARED TO BE RS. 12,36,120/-. THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF TH E ACT AND THEREAFTER THE CASE WAS SELECTED FOR SCRUTINY. DURI NG THE SCRUTINY PROCEEDINGS, THE AO NOTICED THAT FOR THE RELEVANT Y EAR UNDER CONSIDERATION, THE RESPONDENT HAD CLAIMED EXEMPTED INCOME OF RS. 96,75,939/- AS RECEIPTS FROM LONG TERM CAPITAL GAIN [HEREINAFTER REFERRED TO AS LTCG] UNDER SECTION 10(38) OF THE ACT. HE INTER ALIA CONCLUDED THAT THE ASSESSEE HAD ADOPTED A COLORABLE DEVICE OF LTCG TO AVOID TAX AND ACCORDINGLY FRAMED THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT AT THE TOTAL INCOME OF RS . 1,09,12,060/-, MAKING AN ADDITION OF RS. 96,75,939/- UNDER SECTION 68 READ WITH 115BBE OF THE ACT ON ACCOUNT OF BOGUS LTCG ON SALE OF PENNY STOCKS OF A COMPANY NAMED M/S GOLD LINE INTERNATIONAL FINV EST LIMITED. THE APPEAL BEFORE THE CIT(A) WAS DISMISSED AND ADDI TIONS WERE CONFIRMED WITH THE OBSERVATION THAT THE RESPONDENT HAD INTRODUCED UNACCOUNTED MONEY INTO THE BOOKS WITHOUT PAYING TAX ES. FURTHER APPEAL FILED BY THE RESPONDENT BEFORE THE LEARNED I TAT WAS ALLOWED IN HER FAVOUR, AND THE ADDITIONS WERE DELETED VIDE THE IMPUGNED ORDER, RELEVANT PORTION WHEREOF READS AS UNDER: 21. A PERUSAL OF THE ASSESSMENT ORDER CLEARLY SHOW S THAT THE ASSESSING OFFICER WAS CARRIED AWAY BY THE REPORT OF THE INVESTIGATION WING KOLKATA. IT CAN BE SEEN THAT THE ENTIRE ASSESS MENT HAS BEEN FRAMED BY THE ASSESSING OFFICER WITHOUT CONDUCTING ANY ENQUIRY FROM THE RELEVANT PARTIES OR INDEPENDENT SOURCE OR EVIDE NCE BUT HAS MERELY ITA NOS. 456, 457 & 458/HYD/2020 :- 17 -: RELIED UPON THE STATEMENTS RECORDED BY THE INVESTIG ATION WING AS WELL AS INFORMATION RECEIVED FROM THE INVESTIGATION WING . IT IS APPARENT FROM THE ASSESSMENT ORDER THAT THE ASSESSING OFFICE R HAS NOT CONDUCTED ANY INDEPENDENT AND SEPARATE ENQUIRY IN T HE CASE OF THE ASSESSEE. EVEN, THE STATEMENT RECORDED BY THE INVES TIGATION WING HAS NOT BEEN GOT CONFIRMED OR CORROBORATED BY THE P ERSON DURING THE ASSESSMENT PROCEEDINGS. XX XX XX 23. IT IS PROVIDED U/S. 142 (2) OF THE ACT THAT FOR THE PURPOSE OF OBTAINING FULL INFO RMATION IN RESPECT OF INCOME OR LOSS OF ANY PERSON, THE ASSESSING OFFICER MAY MAKE SUCH ENQUIRY AS HE CONSIDERS NECESSARY. IN OUR CONSIDERE D VIEW THE ASSESSING OFFICER OUGHT TO HAVE CONDUCTED A SEPARAT E AND INDEPENDENT ENQUIRY AND ANY INFORMATION RECEIVED FR OM THE INVESTIGATION WING IS REQUIRED TO BE CORROBORATED A ND AFFIRM DURING THE ASSESSMENT BY THE ASSESSING OFFICER BY EXAMININ G THE CONCERNED PERSONS WHO CAN AFFIRM THE STATEMENTS ALREADY RECOR DED BY ANY OTHER AUTHORITY OF THE DEPARTMENT. FACTS NARRATED A BOVE CLEARLY SHOW THAT THE ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY AND THE ENTIRE ASSESSMENT ORDER AND THE ORDER OF THE FIRST APPELLA TE AUTHORITY ARE DEVOID OF ANY SUCH ENQUIRY. 24. THE REPORT FROM THE DIRECTORATE INCOME TAX INVESTIGATION WING, KOLKATA IS DATED 27. 04.2015 WHEREAS THE IMPUGNED SALES TRANSACTIONS TOOK PLACE IN THE M ONTH OF MARCH, 2014. THE EXPARTE AD INTERIM ORDER OF SEBI IS DATED 29.06.2015 WHEREIN AT PAGE 34 UNDER PARA 50 (A) M/S. ESTEEM BI O ORGANIC FOOD PROCESSING LTD WAS RESTRAINED FROM ACCESSING THE SE CURITIES MARKET AND BUYING SELLING AND DEALING IN SECURITIES EITHER DIRECTLY OR INDIRECTLY IN ANY MANNER TILL FURTHER DIRECTIONS. A LIST OF 239 PERSONS IS ALSO MENTIONED IN SEBI ORDER WHICH ARE AT PAGES 34 TO 42 OF THE ORDER THE NAMES OF THE APPELLANTS DO NOT FIND ANY PLACE I N THE SAID LIST. AT PAGES 58 AND 59 THE NAMES OF PRE IPO TRANSFEREE IN THE SCRIP OF M/S. ESTEEM BIO ORGANIC FOOD PROCESSING LTD IS GIVEN AND IN THE SAID LIST ALSO THE NAMES OF THE APPELLANTS DO NOT FIND ANY PL ACE. AT PAGE 63 OF THE SEBI ORDER-TRADING BY TRADING IN M/S. ESTEEM BI O QRGANIC FOOD PROCESSING LTD A FURTHER LIST OF 25 PERSONS IS ME NTIONED AND ONCE AGAIN THE NAMES OF THE APPELLANTS DO NOT FIND PLACE IN THIS LIST ALSO. 25. AS MENTIONED ELSEWHERE THE BROKERS OF THE ASSES SEE NAMELY ISG SECURITIES LIMITED AND SMC GLOBAL SECURITIES LIMITE D ARE STATIONED AT NEW DELHI AND THEIR NAMES ALSO DO NOT FIND PLACE IN THE LIST MENTIONED HERE IN ABOVE IN THE SEBI ORDER. THERE IS NOTHING ON RECORD TO SHOW THAT THE BROKERS WERE SUSPENDED BY THE SEBI NOR THERE ANYTHING ON RECORD TO SHOW THAT THE TWO BROKERS OF THE APPELLANTS MENTIONED HERE IN ABOVE WERE INVOLVED IN THE ALLEGE D SCAM. THE ASSESSING OFFICER HAS NOT EVEN CONSIDERED EXAMINING THE BROKERS OF THE APPELLANTS. IT IS A MATTER OF THE FACT THAT SEB I LOOKS INTO IRREGULAR MOVEMENTS IN SHARE PRICES ON RANGE AND WARN INVESTO R AGAINST ANY SUCH UNUSUAL INCREASE IN SHARES PRICES. NO SUCH WAR NINGS WERE ISSUED BY THE SEBI. 26. THERE IS NO DISPUTE THAT TH E STATEMENTS WHICH WERE RELIED BY THE ASSESSING OFFICER WERE NOT RECOR DED BY THE ITA NOS. 456, 457 & 458/HYD/2020 :- 18 -: ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS BUT THEY WERE PRE- EXISTING STATEMENTS RECORDED BY THE INVESTIGATION W ING AND THE SAME CANNOT BE THE SOLE BASIS OF ASSESSMENT WITHOUT COND UCTING PROPER ENQUIRY AND EXAMINATION DURING THE ASSESSMENT PROCE EDINGS ITSELF. IN OUR HUMBLE OPINION, NEITHER THE ASSESSING OFFICER C ONDUCTED ANY ENQUIRY NOR HAS BROUGHT ANY CLINCHING EVIDENCES TO DISPROVE THE EVIDENCES PRODUCED BY THE ASSESSEE. THE REPORT OF I NVESTIGATION WING IS MUCH LATER THAN THE DATES OF PURCHASE / SALE OF SHARES AND THE ORDER OF THE SEBI IS ALSO MUCH LATER THAN THE DATE OF TRANSACTIONS TRANSACTED AND NOWHERE SEBI HAS DECLARED THE TRANSA CTION TRANSACTED AT EARLIER DATES AS VOID. XX XX XX 30. C ONSIDERING THE VORTEX OF EVIDENCES, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS SUCCESSFULLY DISCHARGED THE ONUS CAST UPON HIM BY PROVISIONS OF SECTION 68 OF THE ACT AS MENTIONED ELSEWHERE, SUCH DISCHARGE OF ONUS IS PURELY A QUESTION OF FACT AND THEREFORE THE JUDI CIAL DECISIONS RELIED UPON BY THE DR WOULD DO NO GOOD ON THE PECULIAR PLE THORA OF EVIDENCES IN RESPECT OF THE FACTS OF THE CASE IN HA ND AND HENCE THE JUDICIAL DECISIONS RELIED UPON BY BOTH THE SIDES, T HOUGH PERUSED, BUT NOT CONSIDERED ON THE FACTS OF THE CASE IN HAND. 6 . AGGRIEVED BY THE AFORESAID FINDINGS, THE REVENUE HAS FILED THE INSTA NT APPEALS CONTENDING THAT, NOTWITHSTANDING THE TAX EFFECT IN THE APPEALS FALLING BELOW THE THRESHOLD PRESCRIBED UNDER CIRCULAR NO. 2 3 DATED 6 TH SEPTEMBER, 2019, THE APPEALS ARE MAINTAINABLE IN VI EW OF THE OFFICE MEMORANDUM DATED 16TH SEPTEMBER, 2019 ISSUED BY THE CBDT, WHICH CLARIFIES THAT THE MONETARY LIMITS PRESCRIBED IN THE AFOREMENTIONED CIRCULAR SHALL NOT APPLY WHERE AN AS SESSEE IS CLAIMING BOGUS LTCG THROUGH PENNY STOCKS, AND THE A PPEALS BE HEARD ON MERITS. 7. MR. ZOHEB HOSSAIN, LEARNED SENI OR STANDING COUNSEL FOR THE REVENUE (APPELLANT HEREIN), CONTEND S THAT THE LEARNED ITAT HAS COMPLETELY ERRED IN LAW IN DELETING THE AD DITION, AND THUS THE IMPUGNED ORDER SUFFERS FROM PERVERSITY. HE SUBM ITS THAT THERE ARE CERTAIN GERMANE FACTUAL ERRORS, INASMUCH AS THE LEARNED ITAT HAS WRONGLY RECORDED THAT THERE WAS NO INDEPENDENT ENQU IRY CONDUCTED BY THE AO, WHEN IN FACT THE AO HAD ISSUED NOTICES T O THE COMPANIES IN QUESTION UNDER SECTION 133(6) OF THE ACT. HE POI NTS OUT THAT THE OBSERVATIONS RECORDED IN PARA 25 OF THE IMPUGNED OR DER ARE FACTUALLY INCORRECT, AND IN CONFLICT WITH PARA 4 OF THE ORDER OF THE CIT(A) DATED 24TH DECEMBER, 2018 WHICH READS AS FOLLOWS: 4. EVE N THE BROKER THROUGH WHOM THE SHARES WERE DEMATERIALIZED AND SOL D I.E. SMC GLOBAL SECURITIES LTD. WAS ALSO A PART OF THE SCAM. THIS IS A DELHI BASED BROKER WHOSE REGIONAL OFFICE WAS ALSO SURVEYE D. THE SUB BROKERS WERE ALSO SURVEYED AND ALSO STATEMENTS RECO RDED WHICH CONFIRMED THE PAYMENT OF CASH COMMISSION BY THE BEN EFICIARIES FOR BEING PART OF THE SYNDICATE. 8. MR. HOSSAIN ARGUES THAT IN CASES RELATING TO LTCG IN PENNY STOCKS, THERE MAY NOT BE ANY DIRECT EVIDENCE IN THE HANDS OF THE REVENUE TO ESTABLISH T HAT THE INVESTMENT MADE IN SUCH COMPANIES WAS AN ACCOMMODATION ENTRY. THUS THE ITA NOS. 456, 457 & 458/HYD/2020 :- 19 -: COURT SHOULD TAKE THE ASPECT OF HUMAN PROBABILITIES INTO CONSIDERATION THAT NO PRUDENT INVESTOR WOULD INVEST IN PENNY SCRIPS. CONSIDERING THE FACT THAT THE FINANCIALS OF THESE C OMPANIES DO NOT SUPPORT THE GAINS MADE BY THESE COMPANIES IN THE ST OCK EXCHANGE, AS WELL AS THE FACT THAT DESPITE THE NOTICES ISSUED BY THE AO, THERE WAS NO EVIDENCE FORTHCOMING TO SUSTAIN THE CREDIBILITY OF THESE COMPANIES, HE ARGUES THAT IT CAN BE SAFELY CONCLUDED THAT THE INVESTMENTS MADE BY THE PRESENT RESPONDENTS WERE NOT GENUINE. HE SUB MITS THAT THE AO MADE SUFFICIENT INDEPENDENT ENQUIRY AND ANALYSIS TO TEST THE VERACITY OF THE CLAIMS OF THE RESPONDENT AND AFTER OBJECTIVE EXAMINATION OF THE FACTS AND DOCUMENTS, THE CONCLUS ION ARRIVED AT BY THE AO IN RESPECT OF THE TRANSACTION IN QUESTION, O UGHT NOT TO HAVE BEEN INTERFERED WITH. IN SUPPORT OF HIS SUBMISSION, MR. HOSSAIN RELIES UPON THE JUDGMENT OF THIS COURT IN SUMAN PODDAR V. ITO, [2020] 423 ITR 480 (DELHI), AND OF THE SUPREME COURT IN SUMATI DAYAL V. CIT, (1995) SUPP. (2) SCC 453. MR. HOSSAIN FURTHER ARGUE S THAT THE LEARNED ITAT HAS ERRED IN HOLDING THAT THE AO DID N OT CONSIDER EXAMINING THE BROKERS OF THE RESPONDENT. HE ASSERTS THAT THIS HOLDING IS CONTRARY TO THE FINDINGS OF THE AO. AS A MATTER OF FACT, THE DEMAT ACCOUNT STATEMENT OF THE RESPONDENT WAS CALLED FOR FROM THE BROKER M/S SMC GLOBAL SECURITIES LTD UNDER SECTION 133(6) OF THE ACT, ON PERUSAL WHEREOF IT WAS FOUND THAT THE RESPONDENT WA S NOT A REGULAR INVESTOR IN PENNY SCRIPS. 10. WE HAVE HEARD MR. HOS SAIN AT LENGTH AND GIVEN OUR THOUGHTFUL CONSIDERATION TO HIS CONTE NTIONS, BUT ARE NOT CONVINCED WITH THE SAME FOR THE REASONS STATED HERE INAFTER. 11. ON A PERUSAL OF THE RECORD, IT IS EASILY DISCERNIBLE THA T IN THE INSTANT CASE, THE AO HAD PROCEEDED PREDOMINANTLY ON THE BASIS OF THE ANALYSIS OF THE FINANCIALS OF M/S GOLD LINE INTERNATIONAL FINVE ST LIMITED. HIS CONCLUSION AND FINDINGS AGAINST THE RESPONDENT ARE CHIEFLY ON THE STRENGTH OF THE ASTOUNDING 4849.2% JUMP IN SHARE PR ICES OF THE AFORESAID COMPANY WITHIN A SPAN OF TWO YEARS, WHICH IS NOT SUPPORTED BY THE FINANCIALS. ON AN ANALYSIS OF THE DATA OBTAINED FROM THE WEBSITES, THE AO OBSERVES THAT THE QUANTUM LEAP IN THE SHARE PRICE IS NOT JUSTIFIED; THE TRADE PATTERN OF THE AF ORESAID COMPANY DID NOT MOVE ALONG WITH THE SENSEX; AND THE FINANCIALS OF THE COMPANY DID NOT SHOW ANY REASON FOR THE EXTRAORDINARY PERFO RMANCE OF ITS STOCK. WE HAVE NOTHING ADVERSE TO COMMENT ON THE AB OVE ANALYSIS, BUT ARE CONCERNED WITH THE AXIOMATIC CONCLUSION DRA WN BY THE AO THAT THE RESPONDENT HAD ENTERED INTO AN AGREEMENT T O CONVERT UNACCOUNTED MONEY BY CLAIMING FICTITIOUS LTCG, WHIC H IS EXEMPT UNDER SECTION 10(38), IN A PREPLANNED MANNER TO EVA DE TAXES. THE AO EXTENSIVELY RELIED UPON THE SEARCH AND SURVEY OPERA TIONS CONDUCTED BY THE INVESTIGATION WING OF THE INCOME TAX DEPARTM ENT IN KOLKATA, DELHI, MUMBAI AND AHMEDABAD ON PENNY STOCKS, WHICH SETS OUT THE MODUS OPERANDI ADOPTED IN THE BUSINESS OF PROVIDING ENTRIES OF BOGUS LTCG. HOWEVER, THE RELIANCE PLACED ON THE REPORT, W ITHOUT FURTHER CORROBORATION ON THE BASIS OF COGENT MATERIAL, DOES NOT JUSTIFY HIS ITA NOS. 456, 457 & 458/HYD/2020 :- 20 -: CONCLUSION THAT THE TRANSACTION IS BOGUS, SHAM AND NOTHING OTHER THAN A RACKET OF ACCOMMODATION ENTRIES. WE DO NOTIC E THAT THE AO MADE AN ATTEMPT TO DELVE INTO THE QUESTION OF INFUS ION OF RESPONDENTS UNACCOUNTED MONEY, BUT HE DID NOT DIG DEEPER. NOTICES ISSUED UNDER SECTIONS 133(6)/131 OF THE ACT WERE IS SUED TO M/S GOLD LINE INTERNATIONAL FINVEST LIMITED, BUT NOTHING EME RGED FROM THIS EFFORT. THE PAYMENT FOR THE SHARES IN QUESTION WAS MADE BY SH. SALASAR TRADING COMPANY. NOTICE WAS ISSUED TO THIS ENTITY AS WELL, BUT WHEN THE NOTICES WERE RETURNED UNSERVED, THE AO DID NOT TAKE THE MATTER ANY FURTHER. HE THEREAFTER SIMPLY PROCEEDED ON THE BASIS OF THE FINANCIALS OF THE COMPANY TO COME TO THE CONCLU SION THAT THE TRANSACTIONS WERE ACCOMMODATION ENTRIES, AND THUS, FICTITIOUS. THE CONCLUSION DRAWN BY THE AO, THAT THERE WAS AN AGREE MENT TO CONVERT UNACCOUNTED MONEY BY TAKING FICTITIOUS LTCG IN A PR E-PLANNED MANNER, IS THEREFORE ENTIRELY UNSUPPORTED BY ANY MA TERIAL ON RECORD. THIS FINDING IS THUS PURELY AN ASSUMPTION BASED ON CONJECTURE MADE BY THE AO. THIS FLAWED APPROACH FORMS THE REASON FO R THE LEARNED ITAT TO INTERFERE WITH THE FINDINGS OF THE LOWER TA X AUTHORITIES. THE LEARNED ITAT AFTER CONSIDERING THE ENTIRE CONSPECTU S OF CASE AND THE EVIDENCE BROUGHT ON RECORD, HELD THAT THE RESPONDEN T HAD SUCCESSFULLY DISCHARGED THE INITIAL ONUS CAST UPON IT UNDER THE PROVISIONS OF SECTION 68 OF THE ACT. IT IS RECORDED THAT THERE IS NO DISPUTE THAT THE SHARES OF THE TWO COMPANIES WERE P URCHASED ONLINE, THE PAYMENTS HAVE BEEN MADE THROUGH BANKING CHANNEL , AND THE SHARES WERE DEMATERIALIZED AND THE SALES HAVE BEEN ROUTED FROM DE- MAT ACCOUNT AND THE CONSIDERATION HAS BEEN RECEIVED THROUGH BANKING CHANNELS. THE ABOVE NOTED FACTORS, INCLUDI NG THE DEFICIENT ENQUIRY CONDUCTED BY THE AO AND THE LACK OF ANY IND EPENDENT SOURCE OR EVIDENCE TO SHOW THAT THERE WAS AN AGREEMENT BET WEEN THE RESPONDENT AND ANY OTHER PARTY, PREVAILED UPON THE ITAT TO TAKE A DIFFERENT VIEW. BEFORE US, MR. HOSSAIN HAS NOT BEEN ABLE TO POINT OUT ANY EVIDENCE WHATSOEVER TO ALLEGE THAT MONEY CHANGE D HANDS BETWEEN THE RESPONDENT AND THE BROKER OR ANY OTHER PERSON, OR FURTHER THAT SOME PERSON PROVIDED THE ENTRY TO CONV ERT UNACCOUNTED MONEY FOR GETTING BENEFIT OF LTCG, AS ALLEGED. IN T HE ABSENCE OF ANY SUCH MATERIAL THAT COULD SUPPORT THE CASE PUT FORTH BY THE APPELLANT, THE ADDITIONS CANNOT BE SUSTAINED. 12. MR. HOSSAIN S SUBMISSIONS RELATING TO THE STARTLING SPIKE IN THE SHARE PRICE AND OTHER FACTORS MAY BE ENOUGH TO SHOW CIRCUMSTANCES THAT MIGHT CREATE S USPICION; HOWEVER THE COURT HAS TO DECIDE AN ISSUE ON THE BAS IS OF EVIDENCE AND PROOF, AND NOT ON SUSPICION ALONE. THE THEORY O F HUMAN BEHAVIOR AND PREPONDERANCE OF PROBABILITIES CANNOT BE CITED AS A BASIS TO TURN A BLIND EYE TO THE EVIDENCE PRODUCED BY THE RESPOND ENT. WITH REGARD TO THE CLAIM THAT OBSERVATIONS MADE BY THE CIT(A) W ERE IN CONFLICT WITH THE IMPUGNED ORDER, WE MAY ONLY NOTE THAT THE SAID OBSERVATIONS ARE GENERAL IN NATURE AND LATER IN THE ORDER, THE CIT(A) ITSELF NOTES THAT THE BROKER DID NOT RESPOND TO THE NOTICES. BE THAT AS IT ITA NOS. 456, 457 & 458/HYD/2020 :- 21 -: MAY, THE CIT(A) HAS ONLY APPROVED THE ORDER OF THE AO, FOLLOWING THE SAME REASONING, AND RELYING UPON THE REPORT OF THE INVESTIGATION WING. LASTLY, RELIANCE PLACED BY THE REVENUE ON SUM AN PODDAR V. ITO (SUPRA) AND SUMATI DAYAL V. CIT (SUPRA) IS OF NO AS SISTANCE. UPON EXAMINING THE JUDGMENT OF SUMAN PODDAR (SUPRA) AT L ENGTH, WE FIND THAT THE DECISION THEREIN WAS ARRIVED AT IN LIGHT O F THE PECULIAR FACTS AND CIRCUMSTANCES DEMONSTRATED BEFORE THE ITAT AND THE COURT, SUCH AS, INTER ALIA, LACK OF EVIDENCE PRODUCED BY THE AS SESSEE THEREIN TO SHOW ACTUAL SALE OF SHARES IN THAT CASE. ON SUCH BA SIS, THE ITAT HAD RETURNED THE FINDING OF FACT AGAINST THE ASSESSEE, HOLDING THAT THE GENUINENESS OF SHARE TRANSACTION WAS NOT ESTABLISHE D BY HIM. HOWEVER, THIS IS QUITE DIFFERENT FROM THE FACTUAL M ATRIX AT HAND. SIMILARLY, THE CASE OF SUMATI DAYAL V. CIT (SUPRA) TOO TURNS ON ITS OWN SPECIFIC FACTS. THE ABOVE-STATED CASES, THUS, ARE O F NO ASSISTANCE TO THE CASE SOUGHT TO BE CANVASSED BY THE REVENUE. 13. THE LEARNED ITAT, BEING THE LAST FACT-FINDING AUTHORITY, ON THE BASIS OF THE EVIDENCE BROUGHT ON RECORD, HAS RIGHTLY COME TO THE CONCLUSION THAT THE LOWER TAX AUTHORITIES ARE NOT ABLE TO SUSTAIN T HE ADDITION WITHOUT ANY COGENT MATERIAL ON RECORD. WE THUS FIND NO PERV ERSITY IN THE IMPUGNED ORDER. 14. IN THIS VIEW OF THE MATTER, NO QUESTION OF LAW, MUCH LESS A SUBSTANTIAL QUESTION OF LAW ARISES FOR OUR CONSIDERATION. 3.1. WE ADOPT THE LORDSHIPS ABOVE DETAILED REASONING MUTATIS MUTANDIS AND HOLD THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN TREATING ASSESSEES LONG TERM CA PITAL GAIN AS BOGUS ONES IN ABSENCE OF ANY SUPPORTIVE EVID ENCE IN THEIR SUPPORT; WHATSOEVER. THE IMPUGNED ADDITION(S) QUA BOTH ASPECTS (SUPRA) ARE DIRECTED TO BE DELETED. THIS FORMER APPEAL ITA NO.456/HYD/2020 IS ACCEPTED. 4. NEXT COMES BOTH ASSESSEES APPEALS ITA NOS.457 & 458/HYD/2020 SEEKING TO REVERSE THE LOWER AUTHORITIES IDENTICAL ACTION MAKING THE ALLEGED UN-EXPLAINED UN A CCOUNTED CASH INVESTMENT ADDITION OF RS.6.40 CRORES EACH IN THE NATURE OF ON-MONEY PAID TO M/S.WESTERN CONSTRUCTIONS. THE CIT( A)S DETAILED DISCUSSION, AFFIRMING THE ASSESSING OFFICER S ACTION TO THIS EFFECT READS AS UNDER: ITA NOS. 456, 457 & 458/HYD/2020 :- 22 -: 5.2 I HAVE CONSIDERED THE ASSESSMENT ORDER, FACTS OF THE CASE AND SUBMISSIONS OF THE CASE. THE GROUND NO.4 RAISED IS DEVOID OF MERIT AS THE TIME LIMIT FOR ISSUE OF NOTICE U/S.143(2) FOR THE ORIGINAL RETURN FILED HAS NOT EXPIRED AND THE ASSESSMENT STOOD ABATED ON ACCOUNT OF SEARCH. SINCE THIS ASSESSMENT AFTER THE ABATEMENT O F PROCEEDINGS IN RESPECT OF ORIGINAL RETURN, THE CONTENTIONS RAISED BY THE APPELLANT ARE NOT APPLICABLE TO THE FACTS OF THE CASE. FURTHER TH E FOLLOWING FACTUAL POSITION EMERGES FROM THE PERUSAL OF THE ORDER AND THE SUBMISSIONS OF THE ASSESSEE. I) DURING THE COURSE OF SEARCH THE MATERIAL SEIZED WAS CONFRONTED TO THE APPELLANT AND THE APPELLANT EXPLAINED THE CONTE NTS OF THE SAME. II) THE DEVELOPER AND THE APPELLANT (WHO IS BUYER) BOTH HAVE ACCEPTED THE CONTENTS OF THE MATERIAL SEIZED DURING THE COUR SE OF SEARCH. III) THE DEVELOPER HAS ACCEPTED RECEIPT OF SUCH CAS H ARID OFFERED THE SAME TO TAX BY WAY OF FILING THE RETURN OF INCOME A FTER THE SEARCH PROCEEDINGS. IV) THE APPELLANT WAS NOT CONFUSED OR UNDER PRESSUR E AS IS MADE OUT AS A GROUND FOR RETRACTION OF THE STATEMENT GIVEN U NDER THE OATH. THE APPELLANT CLEARLY IDENTIFIED THE ENTRIES GAVE EXPLA NATION ACCEPTING CERTAIN ENTRIES AND CERTAIN OTHER ENTRIES WERE NOT ACCEPTED. THIS CLEARLY SHOWS THAT THERE WAS NO SUCH COERCION OR PR ESSURE AS ALLEGED. THE RETRACTION OF THE STATEMENT GIVEN IS NOT ON SOU ND LOGICAL BASIS BUT ONLY TO EVADE THE TAX PAYABLE ON THE AMOUNT ADMITTE D AS INCOME. V) THE STATEMENT OF MR. SIVARAMA RAJU IS ONLY SECON DARY. THE BASIS OF ADDITION IS THE DOCUMENTS FOUND AND THE EXPLANAT ION OF THE CONTENTS OF SUCH DOCUMENTS BY THE APPELLANT AND HIS FAMILY MEMBERS DURING THE COURSE OF SEARCH INDIVIDUALLY. VI) THE LEGAL CONTENTIONS RAISED ARE NOT APPLICABL E AS THE FACTS OF THE CASE ARE COMPLETELY DIFFERENT AS DISCUSSED ABOVE. T HIS IS NOT A CASE WHERE ADDITION IS MADE ON THE BASIS OF DOCUMENT FOU ND AND BASED ON THIRD PARTY STATEMENT. HERE, THE DOCUMENT WAS CO NFRONTED TO THE APPELLANT DURING THE SEARCH ITSELF, THE CONTENTS OF SUCH PAPERS WERE EXPLAINED BY THE APPELLANT AND THE APPELLANT ALSO D ENIED OF CERTAIN ENTRIES. THE BASIS OF ADDITION IS NOT THIRD PARTY S TATEMENT BUT THE APPELLANT'S OWN STATEMENT EXPLAINING THE ENTRIES IN THE MATERIAL SEIZED WHICH WAS CONFRONTED DURING THE COURSE OF SE ARCH ITSELF. VII) THE BASIS FOR RETRACTION AS GIVEN ATPARA-2 OF THE AFFIDAVIT ARE THAT DUE TO FATIGUE AND SLEEPLESSNESS I WAS NOT IN A SOU ND STATE OF MIND ..... THE REASON ABOVE IS NOT BONAFIDE AS CAN BE SEEN FROM THE DETAILED STATEMENT GIVEN DURING THE COURSE OF SEARC H. THE APPELLANT WAS ABLE TO IDENTIFY THE ENTRIES THEREIN AND EXPLAI NED THE NATURE OF ITA NOS. 456, 457 & 458/HYD/2020 :- 23 -: CERTAIN ENTRIES AND DENIED CERTAIN ENTRIES CLEARLY. THE PLOY ADOPTED BY THE APPELLANT IS TO BE SEEN IN THIS CONTEXT. VIII) IN VIEW OF THE FACTUAL AND LEGAL POSITION AS BROUGHT OUT ABOVE, THE ADDITION MADE BY AO IS CONFIRMED AND THE GROUNDS RA ISED ARE REJECTED. WE NOW ADVERT TO THE BASIC RELEVANT FACTS. 5. THE DEPARTMENT HAD CARRIED OUT THE IMPUGNED SEARCH DT.02-11-2016 IN THESE TWIN ASSESSEES CASES NAMELY SRI TARUN KUMAR GOYAL AND SRI ARUN KUMAR GOYAL/VENDEES AS WEL L AS THE VENDOR M/S.WESTERN CONSTRUCTIONS AND OTHER PARTIES. THE SAME CULMINATED IN SECTION 153A PROCEEDINGS INITIATED AGAINST THEM. 6. COMING TO THE ISSUE OF ON-MONEY PAYMENT TO THE VENDOR , M/S.WESTERN CONSTRUCTIONS, IT IS AN ADMITTED FACT THAT THE PURCHASE TRANSACTION IS REGARDING COMMERCIAL SPACE ADMEASURING 38,700 SFT. (11 TH FLOOR) OF THE WESTERN PEARL PROJECT. THE REVENUES CASE IS THAT THE IMPUGNED SEAR CH HAS FOUND/SEIZED THE INCRIMINATING DOCUMENT NO.A/GSR/02 IN THE NATURE OF AN EXCEL SHEET. THE ASSESSING AUTHORIT YS ASSESSMENT ORDER DT.28-12-2018 IN PG.3 PARA 4 STATES TH AT THE SAID EXCEL SHEET REVEALED THE ASSESSEES VENDOR AND SHRI NARENDRA KUMAR GOYALS DEBIT AND CREDIT ENTRIES FOLLOW ED BY REGISTRATION OF THE SALE DEED IN FORMERS NAME ONLY. THE ASSESSING OFFICER TOOK NOTE OF THE FORMER ASSESSEE SHR I TARUN KUMAR GOYALS STATEMENT DT.02-11-2016 U/S.132 OF THE A CT ALLEGEDLY REFERRING TO A DOCUMENT RECOVERED FROM SHRI S.RAJU (PARTNER OF M/S.WESTERN CONSTRUCTIONS) DURING SEARCH THAT THE SAME SUFFICIENTLY INDICATED DETAILS OF THE ON-MO NEY PAYMENT IN ISSUE. ITA NOS. 456, 457 & 458/HYD/2020 :- 24 -: 7. LEARNED CIT-DR INVITED OUR ATTENTION TO THE ASSESSEES REPLY IN PG.4, QUESTION NO.19 THAT DURING THE COURSE OF SEARCH DULY ADMITTING HIS SHARE OF 50% ON MONEY FOLLOWED BY THE NECESSARY CLARIFICATION ON THE RELEVANT TRANSACTIONS. TH E ASSESSING OFFICER ADOPTED THE VERY COURSE OF ACTION FO R THE LATTER ASSESSEE AS WELL. HE FURTHER OBSERVED THAT BOTH THE SE STATEMENTS HAD ADMITTED THE ON-MONEY COMPONENT IN ISSUE. THIS FOLLOWED THE ASSESSEES RETRACTION AFFIDAVIT DT.03 -01-2017 THAT THERE WAS NO INCRIMINATING DOCUMENT FOUND OR SEIZED REGARDING THE IMPUGNED CASH SUM AND THEREFORE, THEY DI D NOT KNOW ANYTHING ABOUT THE INCRIMINATING MATERIAL FOUND/S EIZED FROM M/S.WESTERN CONSTRUCTIONS PARTNERS PREMISES. AND THAT MR.RAJUS STATEMENT HAD ALSO NOT BEEN MADE AVAILABLE TO THEM. HE THUS REJECTED ALL THESE CONTENTIONS AND MADE THE IMPUG NED IDENTICAL ADDITION ON MONEY PAYMENT OF RS.6.40 CRORES EACH IN BOTH OF THEIR HANDS AS UNDER: ITA NOS. 456, 457 & 458/HYD/2020 :- 25 -: ITA NOS. 456, 457 & 458/HYD/2020 :- 26 -: ITA NOS. 456, 457 & 458/HYD/2020 :- 27 -: ITA NOS. 456, 457 & 458/HYD/2020 :- 28 -: ITA NOS. 456, 457 & 458/HYD/2020 :- 29 -: 4.3 APPARENTLY, ASSESSEE'S ABOVE CONTENTIONS ARE N EITHER ACCEPTABLE NOR RECONCILABLE CONSIDERING THE FACT THAT THE STAT ED, PROPERTY IS REGISTERED IN THE NAMES OF BOTH THE ASSESSES BY DUL Y REFERRING THE CHEQUE PAYMENTS AND EXTENT OF SFT AND RATE PER SFT ETC. THESE DETAILS ARE RECONCILABLE AS IT IS COMPARABLE TO THE RECONCILABLE TOTALS OF ALL CREDITS OF THE WORKINGS AS PUT ACROSS TO BOTH T HE ASSESSEES DURING THE SEARCH PROCEEDINGS AS THE STATED PROPERTY IS RE GISTERED IN THEIR NAME AS EXTRACTED IN THE ABOVE STATEMENTS. WITH REF ERENCE TO THIS, ASSESSEE FIRM PARTNER HAS ADMITTED THE RELEVANT REC EIPTS AS PART OF GROSS RECEIPTS OF THE FIRM ON ACCOUNT OF SALE OF TH IS COMMERCIAL SPACE ETC. INCLUDING ADDITIONAL CASH RECEIPTS ALONG WITH AVAILED ADVANCES PRIOR TO REGISTRATION OF SPACE / DURING CONSTRUCTIO N PERIOD AS ADDITIONAL INCOME IN THE HANDS OF FIRMS PARTNERS TO THE EXTENT OF DIFFERENCE AMOUNT OF RS. 9,64,52,010/- I.E., ASSESS EE FIRM WHICH HAS SOLD THIS COMMERCIAL SPACE TO ASSESSEE HAS ADMITTED THESE RECEIPTS AS PART OF, THEIR ADDITIONAL GROSS RECEIPTS TO THE EXTENT OF RS.9,64,52,010/- AS PER THE WORKINGS IN THE SHEET W ITH AGREED RATE PER SFT AS DISCUSSED AND BROUGHT OUT IN THE ASSESSE E STATEMENTS.' HENCE, ON THIS ADDITIONAL RECEIPTS OF FIRM, BOTH TH E ASSESSEE HAVE ADMITTED THEIR ADDITIONAL INCOME OF RS.5.0 CRORES E ACH AS ATTRIBUTABLE TO RS.9,64,52,010/- FOR THIS SALE AND BALANCE FOR A NY OTHER SUCH DISCREPANCIES AS DETAILED IN THEIR STATEMENTS EXTRA CTED SUPRA. HENCE THE AMOUNT OF RS.9,64,52,010/- BEING THE DIFFERENCE OF TOTAL CASH ADVANCE/ RECEIPTS RECONCILABLE WITH SFT RATE REFERR ED AT RS. 5492.30 READ WITH REGISTERED MARKET VALUE OF SRO PER SQUARE FEET INVOLVING THE TOTAL AREA REGISTERED AT 38,700 SFT, THE SAME W AS ADMITTED ON THIS ACCOUNT. HENCE, CONSIDERING THESE FACTS OF CAS E AND CIRCUMSTANCES OF RECONCILIATION, IT IS POSSIBLE THA T ASSESSEE HAS NOT RECONCILED THE TOTAL DIFFERENCE OF CASH ADVANCES I PAYMENTS ATTRIBUTABLE TO SALES TRANSACTION OF RS 9,64,52,010 F - VIS-A-VIS TOTAL OF CASH TRANSACTIONS NOTICED AT RS. 12.8 CRORES AS PUT ACROSS TO ASSESSEES DURING SEARCH PROCEEDINGS AS BROUGHT OUT IN THEIR OATH, STATEMENTS EXTRACTED SUPRA. HENCE, CONSIDERING ASSE SSEE'S SUBMISSIONS AND SUBSEQUENT WITHDRAWAL, ASSESSEE COU LD NOT RECONCILE THE BALANCE DIFFERENCE AMOUNT OF RS.3,15, 47,990/- EXPLAINING THE NATURE OF PAYMENT OF FURTHER ADDITIO NAL RECEIPTS AND CONSEQUENT PROPOSAL FOR ACQUIRING ADDITIONAL SPACE ETC. FROM BUYER ETC. IN VIEW-OF THIS, ASSESSEE WAS REQUESTED TO REC ONCILE THE SAME WITH SUPPORTING EXPLANATION OF SOURCES / SUBMISSION S SO AS TO CONSIDER THE SAME AS PER PROVISIONS OF IT ACT DURIN G ASSESSMENT PROCEEDINGS VIDE THIS OFFICE LETTER DATED 17.12.201 8. IN RESPONSE TO THE SAME, ASSESSEES MADE FOLLOWING SUBMISSIONS. VID E THEIR LETTERS DATED 21.12.2018 AS SUBMITTED BY BOTH THE ASSESSEES SHRI TARUN KUMAR GOYAL AND SHRI ARUN KUMAR GOYAL. ITA NOS. 456, 457 & 458/HYD/2020 :- 30 -: B.PROPOSAL ADDITION TOWARDS UNEXPLAINED INVESTMENT IN BUILDING I WOULD LIKE TO SUBMIT THAT I ALONG WITH MY BROTHER , SRI ARUN KUMAR GOYAL, HAVE PURCHASED A PART OF BUILDING IN T HE FY 2015-16 FOR A TOTAL CONSIDERATION OF RS.11,61,00,00 0/- FROM M/S. WESTERN CONSTRUCTION AND MY SHARE OF INVESTMEN T WAS RS.5,80,50,000/-. THE SOURCE OF THE ABOVE INVESTME NT WAS OUT OF MY ADVANCES RECEIVED BACK FROM MY COMPANIES AND ALSO LOAN OBTAINED FROM HDFC BANK LIMITED. DURING THE COURSE OF SEARCH PROCEEDINGS, I WAS SHOW N A STATEMENT EXTRACTED FROM THE LAPTOP OF MR.SHIVRAM R AJU, PARTNER OF M/S.WESTERN CONSTRUCTIONS CONTAINING SOM E ALLEGED RECEIPTS OF RS.30,89,47,001/-. AS I WAS UNDER LOT OF PRESSURE AND CONFUSION DUE TO LONG SEARCH PROCEEDINS, I HAD GFIVEN A STATEMENT STATING THA THE SAME REPRESENTS MY PAYMEN TS TO M/S.WESTERN CONSTRUCTIONS AGAINST THE PURCHASE OF P ROPERTY. HOWEVER, IMMEDIATELY, I HAD RECONCILED MY BOOKS AND I HAD WITHDRAWN THE STATEMENT RECORDED ON 02.11.2016 VIDE MY LETTER DATED 28.12.2016 FILED WITH DEPUTY DIRECTOR OF INCOME TAX (INV), I AM HEREWITH ENCLOSING A COPY OF SAME F OR YOUR KIND CONSIDERATION. I WISH TO SUBMIT THAT I AM NOT AWARE OF ANY STATEME NT PREPARED BY SRI SHIVRAM RAJU. NEITHER I AM OWNER OF SUCH DO CUMENT NOR IS THE DOCUMENT IN MY WIRING OR FROM MY ELECTRONIC RECORDS. I ONCE AGAIN SUBMIT THAT THE PROPERTY WAS PURCHASED BY ME FOR A TOTAL AGREED CONSIDERATION OF RS.11,61,00,000/- W HICH IS FROM MY EXPLAINED SOURCES OF INCOME AND VIA BANKING CHANNEL. I FURTHER STATE THAT I HAVE NOT PAID ANY AMOUNT OVE R AND ABOVE THE AMOUNT MENTIONED IN THE SALE DEED. 4.4 AFTER CAREFUL CONSIDERATION OF ASSESSEES SUBMIS SIONS AND KEEPING IN VIEW FACTS AND ADMISSION OF RECONCILIATI ON DURING SEARCH AND POST SEARCH PROCEEDINGS, ASSESSEES PLEA/ABOVE SUBMISSIONS ARE NEITHER REASONABLE NOR ACCEPTABLE IN VIEW OF THE FO LLOWING LOGICAL AND LEGIBLE CONCLUSIONS AS PER PROVISIONS OF IT ACT AS ASSESSEE FAILED TO EXPLAIN SOURCES OF TOTAL CASH PAYMENTS OF RS.12,80, 00,000/- AND SAME NEEDS TO BE TREATED AS ADDITIONAL IN THE HANDS OF BOTH THE ASSESSEES AS RIGHTLY ADMITTED BY THESE TWO ASSESSEE S DURING SEARCH AT A TOTAL OF RS.10 CRORES AS AGAINST OF RS.12.80 C RORES. A) IT IS A FACT ON RECORD, THAT BOTH THE ASSESSEES WER E CATEGORICALLY PUT ACROSS THE SEIZED SHEET REFERRING TO RECONCILIA TION OF VARIOUS RECEIPTS AND PAYMENTS WITH COMPARABLE FACTS OF PURC HASE OF SFT AND ITS PRICE, PAYMENT SCHEDULE ETC. THIS IS C ELARLY EVIDENT FROM STATEMENTS RECORDED FROM BOTH THE ASSESSEES, T HAT WHEN THE EVIDENCE IS PUT ACROSS TO THEM DURING SEARCH PR OCEEDINGS ASSESSEES HAVE SUBMITTED IT AS TRUE AND CORRECT. BA SED ON THE ITA NOS. 456, 457 & 458/HYD/2020 :- 31 -: SAME, ASSESSEE HAS RECONCILED TO ADMIT THE DIFFEREN CE AMOUNT OF CASH, AS COMPARED WITH TOTAL REGISTERED VALUE VI S-A-VIS TOTAL CASH PAYMENTS, IN THE RESPECTIVE HANDS OF. SHRI TAR UN KUMAR GOYAL AND SRI ARUN KUMAR GOYAL. HENCE, ASSESSEES' PLAIN/BALD REPLY THAT HE IS NOT AWARE AND HE WAS NE VER PROVIDED THE DETAILS / INFORMATION, AND THAT HE IS NOT AWARE OF' THE SEARCH OATH STATEMENTS RECORDED ON THE VISIBLE FACTS OF THEIR PURCHASES AND EVIDENCES, RECORDING OF STATEMENTS FR OM RELEVANT PERSONS OF EVIDENCES FOUND ETC., IS FAR ST RETCHED IMAGINATION, DEVOID OF FACTS, MERITS AND SUBSTANCE OF TRUTH. ACCORDINGLY SAME' IS NOT ACCEPTABLE. B) IT IS A FACT ON RECORD THAT ASSESSEE HAS CLEARLY CO MPUTED AND ARRIVED AT TOTAL VALUE, AS RS. 21.25 CRORES FOR PUR CHASE OF TOTAL SFT 38700 @ 5492.30 AND THE SAME WAS FURTHER SUBTRA CTED FROM REGISTERED SRO VALUE RS. 11.61 CRORES AND DIFF ERENCE AMOUNT OF RS. 9.64 CRORES WAS DULY ARRIVED AS RECON CILED WITH SEIZED DOCUMENT AS FORMING PART OF TOTAL CASH PAYME NTS OF RS.12.80 CRORES. THIS IN FACT WAS ONLY ADMITTED WHI LE GIVING THE ADMISSION IN THE HANDS OF BOTH THE ASSESSEE PUT TOGETHER AT RS.4.82. CRORES EACH AS ATTRIBUTABLE TO ADDITIONAL INVESTMENT MADE IN PURCHASE OF COMMERCIAL SPACE AND ADDITIONAL INCOME OF RS.17,73,995/- EACH IS ADMITTED BY BOTH THE ASSE SSEE TO COVER UP FURTHER DISCREPANCIES INVOLVING BALANCE PA YMENTS OF RS.3,15,47,990/- SUBJECT TO FINAL RECONCILIATION OF RELEVANT CASH/FUND FLOW STATEMENTS OF EACH ASSESSEE. THIS EN TIRE FACT IS EVIDENT AS IN AT ANSWER TO Q. NO (35) AND (19) OF R ELEVANT STATEMENTS OF BOTH THE ASSESSEE AS EXTRACTED SUPRA READ WITH Q.NO. (36) OF SRI ARUN KUMAR GOYAL STATEMENT WHEREI N THE SEIZED ANNEXURE SHEET WAS CATEGORICALLY PUT ACROSS TO THE ASSESSEE FOR NECESSARY RECONCILIATION AND RECONFIRM ATION OF THE ADMISSIONS MADE. FURTHER, IT IS NOTICEABLE THAT AT Q.NO. (37) OF SRI ARUN KUMAR GOYAL STATEMENT DATED 02.11.2016 IN THE SAME SEQUENCE OF QUESTIONS, IT HAS BEEN CATEGORICALLY AD MITTED FURTHER ADDITIONAL INCOME OF RS. 17,73,995/- TO COV ER UP ANY OTHER DISCREPANCIES AND RECONCILIATION OF ABOVE TOT ALS INVOLVING ADDITIONAL PAYMENTS MADE IN PURCHASE OF COMMERCIAL SPACE AS TOTAL CASH PAID INVOLVED IS RS.12.8CRORES AS AGAINS T RECONCILED OF RS. 9.64 CRORES. HENCE, IT IS SINE-QUA-NON THAT ASSESSEE HAS TO RECONCILE ALL THE TOTALS AS PUT ACROSS TO HIM DU RING SEARCH AND POST SEARCH PROCEEDINGS WITH RELEVANT SHOW CAUS E DURING ASSESSMENT PROCEEDINGS FOR FURTHER NECESSARY RECONC ILIATION VIS-A-VIS STATEMENTS RECORDED DURING SEARCH AS DISC USSED SUPRA. HOWEVER, WITHOUT EXPLAINING ANY JUSTIFIABLE RECONCILIATION ON COMPARABLE FACTS OF EXTENT OF COM MERCIAL SPACE AND RATE OF COMMERCIAL SPACE, IT IS NOT JUSTI FIABLE TO CONTRADICT THE ADMISSION MADE BASED ON COMPARED AND ITA NOS. 456, 457 & 458/HYD/2020 :- 32 -: RECONCILED EVIDENCES AS FOUND DURING SEARCH INVOLVI NG CLEAR PURCHASE OF COMMERCIAL SPACE THROUGH A REGISTERED D OCUMENTS WITH RECONCILABLE CHEQUES PAYMENTS FORMING PART OF TOTALS ETC. ACCORDINGLY ASSESSEE CONTRADICTORY SUBMISSIONS RETR ACTING THE ORIGINAL ADMISSION MADE ON EVIDENCES OF CIRCUMSTANT IAL PROOFS ETC. IS NOT ACCEPTABLE AND IS TO BE REJECTED AS NOT ACCEPTABLE AS PER I.T. ACT. FURTHER, ASSESSEE CONTENTION THAT THE Y WERE NOT OFFERED OPPORTUNITY TO CROSS EXAMINE THE EVIDENCES AND STATEMENTS OF BUYER/PARTNERS OF FIRM IS NOT ACCEPTA BLE AS ASSESSEES FAILED TO AVAIL THE OPPORTUNITY OFFERED V IDE SUMMONS DATED 21.12.2018 FOR THIS PURPOSE AND CHOSE TO AVOI D THE SAME IN THE GUISE OF ILL HEALTH CLEARLY PROVES, ASSESSEE S UNFAIR CLAIMS ON THIS ANALOGY AND SAME IS NOT ACCEPTABLE. 4.5 ACCORDINGLY, ASSESSEE'S STAND OF CONTRADICTING THE ADMISSION WITHOUT ANY BASIS 'HAS NEITHER THE SUPPORT OF LAW N OR ANY VERIFIABLE CONTRADICTORY PROOFS EXCEPT MAKING AN AFTERTHOUGHT TO AVOID GENUINE PAYMENT OF TAXES. ACCORDINGLY, ASSESSEE'S PLEA IS N OT A REASONABLE CONTENTION AS PER PROVISIONS OF I.T. ACT AND ENTIRE AMOUNT OF RS. 12.8 CRORES NEEDS TO BE BROUGHT TO TAX AT RS.6.40 CRORES EACH AS UNEXPLAINED AND UN-RECONCILED CASH INVESTMENTS OF A SSESSEE, AS ADMITTED DURING SEARCH AND IS ASSESSED ACCORDINGLY . 8. SUFFICE TO SAY, THE CIT(A) HAS REJECTED ASSESSEES PLEAS INTER ALIA THAT THE IMPUGNED SEARCH HAD NOT FOUND OR SEIZED ANY INCRIMINATING MATERIAL SINCE THEIR ALLEGED ADMISSI ON (SUPRA) HAD ALREADY RETRACTED EVEN IF THERE WERE SOME EVIDENCE AGAINST THEM WHICH FORMED THE BASIS OF ADDITION IN THE RECIPIENTS THAN THEIR HANDS, THERE WAS NO CASH COMPON ENT INVOLVED IN THE COMMERCIAL SPACES PURCHASE, NO CROS S- EXAMINATION OF SHRI RAJU HAD BEEN PROVIDED TO THEM AND THAT THE SOURCE OF THE PURCHASE PRICE WAS THE LOANS OBTAINE D FROM M/S.HDFC BANK THAN ANY CASH SUM, RESPECTIVELY. THIS LEAVES BOTH THE ASSESSEES AGGRIEVED. 9. LEARNED AUTHORISED REPRESENTATIVE HAS FILED A DETAIL ED NOTE INTER ALIA REITERATING THE ASSESSEES STAND BEFORE THE CIT(A)S QUA THE IMPUGNED MONEY PAYMENT ADDITION THAT THE ITA NOS. 456, 457 & 458/HYD/2020 :- 33 -: SAME HAS BEEN WRONGLY MADE ON THE BASIS OF A MERE D UMB DOCUMENT. HE HAS ALSO REFERRED TO CATENA OF CASE LAW, WHICH WILL BE DISCUSSED; IF ANY NEED ARISES IN SUCCEEDING PARAGRAPHS. LEARNED DEPARTMENTAL REPRESENTATIVE HAS STRONGLY SUPPOR TED BOTH THE LOWER AUTHORITIES ACTION MAKING THE IMPUGNED ADDITION OF MONEY PAYMENT IN CASH IN BOTH ASSESSEES H ANDS BASED ON THE SEIZED DOCUMENT (SUPRA). 10. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVAL ARGUMENTS. WE FIND NO REASON TO SUSTAIN THE IMPUGNED IDENTICAL ADDITION OF MONEY PAYMENT IN CASH ADDITION I N THESE ASSESSEES HANDS. IT IS AN ADMITTED FACT THAT LEARNED LO WER AUTHORITIES HAVE GONE BY THE ALLEGED LOOSE SHEET ONLY ALLEGEDLY REVEALING THE IMPUGNED PAYMENTS MADE OUT AT ASSESSEES BEHEST OVER AND ABOVE THE SALE PRICE INVOLVING M/S.WE STERN PEARL PROJECT SOLD BY M/S.WESTERN CONSTRUCTIONS/VENDEE S. LEARNED DEPARTMENTAL AUTHORITIES HAVE TREATED THE LATTERS PARTNERS STATEMENT AND THE ALLEGED EXCEL SHEET AS THE B ASIS OF THE IMPUGNED ADDITIONS. LEARNED CIT-DR ALSO QUOTED SECTION 132(4) R.W.S.292C OF THE ACT THAT SUCH AN INCRIMINATING MATERIAL FOUND/SEIZED DURING THE COURSE OF SEARCH CARRIES PRESUMPTION OF CORRECTNESS AS WELL. H E FAILS TO REBUT THE CLINCHING LEGISLATIVE EXPRESSION USED IN S ECTION 292C OF THE ACT CARRYING PRESUMPTION INTER ALIA THAT THE SPECIFIED CATEGORIES OF THE INCRIMINATING MATERIAL ARE PRESUMED TO BE BELONGING TO SUCH PERSONS AND THEIR CONTENTS ARE TRUE, VALIDLY SIGNED AND ARE EXECUTED AND ARE TREATED TO BE IN THE POSSESSION; QUA THE CONCERNED ASSESSEE ONLY THAN IN CASE OF ANY THIRD PERSON AS WELL. THE REVENUES ENDEAVOUR TO THIS EFFECT SEEKING TO APPLY 292C R.W.S.132(4) PRESUMPTIONS FAILS. ITA NOS. 456, 457 & 458/HYD/2020 :- 34 -: WE MAKE IT CLEAR THAT HON'BLE APEX COURTS RECENT LANDM ARK DECISION (2018) 9 SCC 1 (FB)(SC) HAS RECENTLY SETTLED THE LAW THAT PROVISIONS OF A TAXING STATEMENT HAVE TO BE INTERPR ETED IN STRICTER PARLANCE ONLY. 11. NEXT COMES YET ANOTHER EQUALLY IMPORTANT FACET OF THE INSTANT ISSUE. THE REVENUE HAS CITED STATEMENT OF M/S.WESTERN CONSTRUCTIONS PARTNER (SUPRA) THAT THE SAME DULY PROVED THAT THE ON-MONEY PAYMENTS HAD BEEN MADE IN CASH BY THESE ASSESSEES. THIS ARGUMENT ALSO FAILS INTER ALIA FOR THE REASONS THAT SHRI RAJU HAD MADE IT CLEAR DURING AND AFTER SEARCH THAT HE WAS NOT AWARE OF THE COMPANYS BUSINESS AFFAIRS. AND THAT THE ALLEGED DOCUMENT NEVER MENTIONED THESE ASSESSEES NAMES AT ALL AS IT IS NOT ONLY THE ASSESSING OFFICER IN THE IMPUGNED ASSESSMENT BUT EVEN IN CASE OF THE RECIPIE NT M/S.WESTERN CONSTRUCTIONS ASSESSMENT ORDER DT.28-12-201 8 AS WELL WHEREIN IT HAD BEEN HELD THAT THE ON MONEY AMO UNT WAS ATTRIBUTABLE TO SHRI NARENDRA KUMAR GOYAL THAN THESE TWIN ASSESSEES. LD.CIT-DR WAS FAIR ENOUGH IN INFOR MING THE BENCH THAT THE DEPARTMENT HAS NOT INITIATED ANY ACTION AGAIN ST SHRI NARENDRA KUMAR GOYAL. THAT BEING THE CASE, THE REVENUES STAND OF HAVING STRICTLY GONE BY THE CONTENT S OF THE SEIZED DOCUMENT ONLY TO THIS EFFECT ITSELF IS SELF-CONTRA DICTORY SINCE SHRI GOYAL (ASSESSEES FATHER) HAS NOWHERE BE EN EXAMINED TILL DATE. 12. SHRI MOHARANAS NEXT ARGUMENT IS THE ASSESSEES STATEMENT (SUPRA) HAD DULY ADMITTED THE IMPUGNED ON MONE Y PAYMENT. WE ARE UNABLE TO AGREE WITH THE INSTANT PLEA BA SED ON MERE ADMISSION MADE POST SEARCH IN VIEW OF THE CBD TS ITA NOS. 456, 457 & 458/HYD/2020 :- 35 -: CIRCULAR(S) DT.10-03-2003 AND 18-02-2011 MAKING IT CL EAR THAT SUCH AN ADMISSION OF UNDISCLOSED INCOME MADE DURING SEARCH OR SURVEY DOES NOT CARRY ANY SIGNIFICANCE AND THE SAM E HAS TO BE BASED ON EVIDENCE COLLECTED IN THE VERY PROCESS O NLY. 13. LASTLY COMES THE CRUCIAL ISSUE AS TO WHETHER THE IMPUGNED SEIZED MATERIAL / EXCEL SHEET (NOT MENTIONI NG THE ASSESSEES NAMES) FORMS A DUMB DOCUMENT OR NOT. WE M AKE IT CLEAR THAT THE DEPARTMENT HAS FAILED TO CORROBORATE THE IMPUGNED SEIZED DOCUMENT INDICATING ASSESSEES ALLEGE D ON MONEY PAYMENT OVER AND ABOVE THE SALE PRICE ITSELF. ALL IT HAS DONE IS TO RELY ON THEIR FATHERS NAME ONLY. IT IS NO WHERE CLEAR AS TO WHETHER IT IS AN ALLEGED DOCUMENT FORMING PART OF THE BOOKS OF ACCOUNT MAINTAINED IN THE REGULAR COURSE OF B USINESS EITHER BY THE VENDOR OR VENDEE SIDE. ALL IT CONTAINS TH EREFORE IS ROUGH NOTINGS AND JOTTINGS ONLY. THIS TRIBUNAL CO-ORDIN ATE BENCHS DECISION NISHAN CONSTRUCTIONS VS. ACIT ITA NO.1502/AHD/2015; AFTER CONSIDERING THE HON'BLE APEX COURTS LANDMARK DECISION IN COMMON CAUSE, VS. UNION OF IND IA (2017) 77 TAXMANN.COM 245 (SC) AND CBI VS. V.C.SHUKL A (1998) 3 SCC 410 (SC) HOLDS THAT SUCH LOOSE SHEETS DE SERVES TO BE TREATED AS A DUMB DOCUMENTS ONLY SINCE NOT REVEAL ING FULL DETAILS ABOUT THE DATES CONTAINING LACK OF FURTHER PARTICULARS AND THEREFORE, OUGHT NOT TO BE MADE BASIS O F AN ADDITION. SIMILAR OTHER JUDICIAL PRECEDENTS ACIT VS. L AYER EXPORTS P.LTD., (2017) [184 TTJ 469] (MUMBAI) & ITO V S. KRANTI IMPEX PVT. LTD., ITA NO.1229/MUM/2013, DT.28-02- 2018 (DEALING WITH A SEIZED DOCUMENT SEIZED NOT EITHER BEARING THE TAXPAYERS NAME OR SIGNATURE). SHRI NEERAJ GOYAL VS. ACIT, ITA NO.5951/DEL/2017, DT.21-03-2018, (DEL) (2012) 23 ITA NOS. 456, 457 & 458/HYD/2020 :- 36 -: TAXMANN.COM 269] NAGARJUNA CONSTRUCTION CO. LTD., VS. DCIT, CIT VS. S.M.AGARWAL, [293 ITR 43], CIT VS. SHRI GIR ISH CHAUDHARY (2008) 296 ITR 619 (DEL) ALSO ECHO THE VER Y PRINCIPLE. WE ACCORDINGLY HOLD THAT THE IMPUGNED ADDI TION OF ON-MONEY PAYMENT MADE IN BOTH THESE ASSESSEES HANDS ON THE BASIS OF A MERE DUMB DOCUMENT AND NOT CORROBORATED BY ANY OTHER EVIDENCE IS NOT SUSTAINABLE. WE THUS DIRECT TO DELETE THE IMPUGNED IDENTICAL ADDITION FORMING SUBJECT MATTER O F ADJUDICATION IN BOTH THESE CASES. ALL OTHER GROUNDS RAISED IN ASSESSEES INSTANT APPEAL S ARE RENDERED INFRUCTUOUS IN VIEW OF OUR ADJUDICATION ON MERITS. ORDERED ACCORDINGLY. 14. THESE ASSESSEES APPEALS ARE ALLOWED IN ABOVE TE RMS. A COPY OF THIS COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH APRIL, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 20-04-2021 TNMM ITA NOS. 456, 457 & 458/HYD/2020 :- 37 -: COPY TO : 1.SRI TARUN KUMAR GOYAL, C/O. P. MURALI & CO., CHAR TERED ACCOUNTANTS, 6-3-655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD. 2.SRI ARUN KUMAR GOYAL, C/O. P. MURALI & CO., CHART ERED ACCOUNTANTS, 6-3-655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD. 3.THE ASST.COMMISSIONER OF INCOME TAX, CENTRAL CIRC LE-3(2), HYDERABAD. 4.CIT(APPEALS)-11, HYDERABAD. 5.PR.CIT-CENTRAL, HYDERABAD. 6.D.R. ITAT, HYDERABAD. 7.GUARD FILE.