Sri Gautam Kumar Pincha, Kolkata V. ITO, Ward 34(4), Kolkata, Kolkata

ITA 569/KOL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0996 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 23-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Unexplained cash credit; Income from undisclosed sources; Share purchase agreement; Question of law; Wrong claim; Accommodation entries; Scheme of amalgamation; Onus to prove; Penny stocks
• Section: 68

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA () BEFORE .., /AND . ' # $%&% , ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] / I.T.A NO. 569/KOL/2017 / ASSESSMENT YEAR: 2013-14 SHRI GAUTAM KUMAR PINCHA (PAN: AKGPP 6211L) VS. INCOME-TAX OFFICER, WD-34(4), KOLKATA ( )* /APPELLANT ) ( +,)* / RESPONDENT ) DATE OF HEARING 01.09.2017 DATE OF PRONOUNCEMENT 15.11.2017 FOR THE APPELLANT/ )* SHRI MIRAJ D.SHAH FOR THE RESPONDENT/ +,)* SHRI SALLONG YADEN, ADDL. CIT, DR / ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-10, KOLKATA DATED 20.01.2017 FOR AY 2013-14. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL OF ASSESSEE IS AS TO WHETHER THE LONG TERM CAPITAL GAINS OF RS.29,57,981 ARISING OUT OF SALE O F QUOTED EQUITY SHARES CAN BE ASSESSED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE IT ACT 196 1. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A RESIDENT INDIVIDUAL AND FOR THE AY UNDER APPEAL I.E. 2013-14, RETURN WAS FILED ON 19/1 1/2014 DECLARING AN INCOME OF RS.3,26,968 AND IN THE SAID RETURN OF INCOME, THE A SSESSEE CLAIMED TO HAVE EARNED LONG TERM CAPITAL GAINS OF RS.29,57,981 ON SALE OF 5800 SHARES OF M/S OASIS CINE 2 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 2 COMMUNICATION LTD; AND 6400 SHARES OF M/S BSR FINAN CE & CONSTRUCTION LTD. THE AO NOTED THAT THE ASSESSEE HAD PURCHASED 400 SHARES OF MS QUICK MANAGEMENT SERVICES LTD IN FY 2010-2011 FOR A CONSIDERATION OF RS.1,00, 000 AND AGAINST THESE SHARES AS A RESULT OF A SCHEME OF AMALGAMATION, THE ASSESSEE GO T 6400 SHARES OF M/S BSR FINANCE & CONSTRUCTION LTD AND THIS ENTIRE SHARES WERE SOLD DURING FY 2012-2013 FOR A CONSIDERATION OF RS.12,29,111. THE AO ALSO FOUND TH AT THE ASSESSEE HAD PURCHASED 200 SHARES OF M/S GRAVITY BARTER LTD FOR A CONSIDERATI ON OF RS.1,00,000/- IN FY 2010-2011 AND AS AND AGAINST THESE SHARES AS A RESULT OF A SC HEME OF AMALGAMATION, THE ASSESSEE GOT 8800 SHARES OF M/S OASIS CINE COMMUNICATION LTD (WHICH WAS RENAMED TO ECOWAVE INFOTECH LTD) AND PART OF THIS I.E. 5800 SH ARES WERE SOLD DURING FY 2012-2013 FOR A CONSIDERATION OF RS.18,94,780 AND THIS RESULT ED IN LONG TERM CAPITAL GAINS OF RS.29,57,981. 4. THE AO TOOK NOTE OF THE FACT THAT THE GAIN MADE BY THE ASSESSEE IN THE TRANSACTION OF THE SALE OF SHARES WAS VERY HIGH DURING A SHORT PER IOD OF TIME AND AS PER THE AO, BOTH THE COMPANIES I.E. BSR FINANCE & CONSTRUCTION LTD A ND OASIS CINE COMMUNICATION LTD (WHICH WAS RENAMED TO ECOWAVE INFOTECH LTD) WER E BOGUS COMPANIES AND THEREFORE, THE LONG TERM CAPITAL GAINS EARNED THERE ON WERE HIGHLY SUSPICIOUS. THE AO ISSUED NOTICES AND MADE INQUIRIES AND FOUND THAT TH E SHARES WERE SOLD THROUGH TWO REGISTERED STOCK BROKERS WHO WERE MEMBERS OF THE CA LCUTTA STOCK EXCHANGE I.E. M/S BIKASH SUREKHA AND M/S S K KHEMKHA. THE AO ALSO NOT ED THAT AS PER THE LETTER DATED 03/07/2015, THE DIRECTORATE OF INVESTIGATION OF INC OME TAX HAS REPORTED THAT PRICES OF SOME SHARES OF PENNY STOCK WERE ARTIFICIALLY RIGGED TO BENEFIT SOME ASSESSEE THROUGH BOGUS CLAIM OF LONG TERM CAPITAL GAINS. THE AO LIST ED SOME 10 TO 11 FEATURES AS REPORTED BY THE DIRECTORATE OF INVESTIGATION OF SUC H KIND OF PENNY STOCK WHICH WERE USED FOR BOGUS CAPITAL GAINS TRANSACTIONS. BASED ON SUCH REPORT OF THE INVESTIGATION DEPARTMENT, THE AO CONCLUDED THAT THE CAPITAL GAINS EARNED BY THE ASSESSEE FROM THE SALE OF SHARES OF BSR FINANCE & CONSTRUCTION LTD AN D OASIS CINE COMMUNICATION LTD 3 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 3 (WHICH WAS RENAMED TO ECOWAVE INFOTECH LTD) WERE BO GUS AND THUS THE ENTIRE CAPITAL GAINS WHICH WAS CLAIMED AS EXEMPT U/S 10(38) OF THE INCOME TAX ACT 1961(HEREIN AFTER THE ACT) WAS HELD TO BE BOGUS AND THE SAME WAS ADDED AS UNEXPLAINED CASH CREDIT. THE AO ALSO HELD THAT IN ORDER TO ARRANGE FOR SUCH CAPITAL GAINS, THE ASSESSEE MUST HAVE INCURRED SOME COSTS TOWARDS COMMISSION, AND THEREFO RE THE AO ESTIMATED SUCH COMMISSION @ 0.50% OF THE SALE VALUE AND ADDED A SU M OF RS.15,619/- AND ACCORDINGLY ADDED A SUM OF RS.29,73,600/- TO THE INCOME OF THE ASSESSEE. THE LD CIT (A) RELIED ON THE OBSERVATIONS OF THE AO AND HELD THAT SUCH TRAN SACTIONS WERE DUBIOUS IN NATURE AND BASED ON CIRCUMSTANTIAL EVIDENCES, THE ADDITION MAD E BY THE AO WAS JUSTIFIED AND THUS THE LD CIT (A) UPHELD THE ADDITIONS MADE BY THE AO. 5. AGGRIEVED BY THE AFORESAID ORDER PASSED BY THE L D. CIT(A) UPHOLDING THE ADDITION OF RS.29,73,600, THE ASSESSEE HAS PREFERRED THIS APPEA L BEFORE US, SEEKING RELIEF FOR DELETION OF THE ADDITION AND DIRECTING THE AO TO TREAT THE C APITAL GAINS AS EXEMPT U/S 10(38) OF THE ACT. 6. THE LD AR SUBMITTED THAT THE ADDITION MADE BY TH E AO AND UPHELD BY THE LD CIT (A) WAS BASED ON PRESUMPTIONS AND SUSPICION ALONE A ND ARE THEREFORE PERVERSE IN THE EYES OF LAW. IN THE COURSE OF HEARING OF THE CASE, THE LD AR REFERRED TO VARIOUS DOCUMENTARY EVIDENCES FURNISHED IN THE PAPER BOOK I N SUPPORT OF THE CLAIM OF THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTIO NS RELATING TO LTCG ON SALE OF SHARES. THE DOCUMENTARY EVIDENCES INCLUDED THE FOLLOWING: (I) BALANCE SHEET OF THE ASSESSEE FOR FY 2010-2011 WHEREIN THE INVESTMENT OF RS.2,00,000 MADE IN SHARES WERE DULY RECORDED AN D REFLECTED. (II) THE BILLS FOR PURCHASE OF THE SHARES OF MS QU ICK MANAGEMENT SERVICES LTD (III) THE BILLS FOR PURCHASE OF THE SHARES OF MS G RAVITY BARTER LTD 4 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 4 (IV) THE BANK STATEMENT OF THE MAINTAINED WITH SOU TH INDIAN BANK LTD REFLECTING THE PAYMENT OF RS.2,00,000 TO PURCHASE T HE SHARES OF MS QUICK MANAGEMENT SERVICES LTD AND MS GRAVITY BARTER LTD (V) THE DOCUMENTS RELATING TO THE MERGER OF MS GRA VITY BARTER LTD WITH OASIS CINE COMMUNICATION LTD APPROVED BY THE HONBLE CALC UTTA HIGH COURT IN THE CA 519 OF 2011. (VI) THE DOCUMENTS RELATING TO THE MERGER OF MS QU ICK MANAGEMENT SERVICES LTD WITH BSR FINANCE & CONSTRUCTION LTD APPROVED BY THE HONBLE CALCUTTA HIGH COURT IN THE CA 575 OF 2011. (VII) THE LETTER OF ALLOTMENTS FOR THE SHARE HELD IN MS QUICK MANAGEMENT SERVICES LTD AND EXCHANGED WITH THE SHARES OF BSR F INANCE & CONSTRUCTION LTD IN TERMS OF THE RATIO AS APPROVED BY THE HONBLE CA LCUTTA HIGH COURT IN THE CA 575 OF 2011. (VII) THE LETTER OF ALLOTMENTS FOR THE SHARE HELD IN MS GRAVITY BARTER LTD AND EXCHANGED WITH THE SHARES OF OASIS CINE COMMUNICATI ON LTD IN TERMS OF THE RATIO AS APPROVED BY THE HONBLE CALCUTTA HIGH COUR T IN THE CA 519 OF 2011. (VIII) THE CHANGE OF NAME NOTICE ISSUED BY THE CA LCUTTA STOCK EXCHANGE DATED 17/10/2012 AS PER WHICH IT WAS STATED THAT THE NAME OF OASIS CINE COMMUNICATION LTD WAS CHANGED TO MS ECOWAVE INFOTEC T LTD IN TERMS OF THE FRESH CERTIFICATE OF INCORPORATION ISSUED BY THE RE GISTRAR OF COMPANIES. (IX) COPY OF SHARE CERTIFICATE ISSUED BY BSR FINAN CE & CONSTRUCTION LTD IN TERMS OF THE RATIO AS APPROVED BY THE HONBLE CALCU TTA HIGH COURT IN THE CA 575 OF 2011. (X) COPY OF SHARE CERTIFICATE ISSUED BY OASIS CINE COMMUNICATION LTD IN TERMS OF THE RATIO AS APPROVED BY THE HONBLE CALCUTTA HI GH COURT IN THE CA 519 OF 2011. 5 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 5 (XI) COPY OF CONTRACT NOTES ISSUED BY MR BIKASH SUR EKHA, MEMBER OF CALCUTTA STOCK EXCHANGE HAVING SEBI REGISTRATION NO INB 0311 19713 AND CODE NO 03/995 FOR SALE OF SHARES OF BSR FINANCE & CONSTRUC TION LTD. (XII) COPY OF CONTRACT NOTES ISSUED BY MR S K KHEMK A, MEMBER OF CALCUTTA STOCK EXCHANGE HAVING SEBI REGISTRATION NO INB 0300 71512 AND CODE NO 03/577 FOR SALE OF SHARES OF OASIS CINE COMMUNICATI ON LTD (WHICH WAS RENAMED TO ECOWAVE INFOTECH LTD). (XIII) THE BANK STATEMENT OF THE MAINTAINED WITH SO UTH INDIAN BANK LTD REFLECTING THE PAYMENT RECEIVED FOR THE SALE OF SHA RES OF BSR FINANCE & CONSTRUCTION LTD AND OASIS CINE COMMUNICATION LTD ( WHICH WAS RENAMED TO ECOWAVE INFOTECH LTD). (XIV) COPY OF DEMANT STATEMENT OF ASSESSEE MAINTAIN ED WITH DEPOSITARY PARTICIPANT MS SHREE BAHUBALI INTERNATIONAL LTD SBI L-000764 CLIENT ID 10015233. SHOWING THE SHARES WERE HELD IN DEMAT FOR M AND DELIVERED TO THE BROKER IN DEMAT FORM. (XV) COPY OF THE BALANCE SHEET AND PROFIT LOSS ACCO UNT OF BSR FINANCE & CONSTRUCTION LTD AND OASIS CINE COMMUNICATION LTD ( WHICH WAS RENAMED TO ECOWAVE INFOTECH LTD) FOR THE YEAR ENDED 31/03/2012 & 31/03/2013. 6.1. THE LD AR SUBMITTED THAT THE PURCHASE OF SHARE S IN THE FY 2010-11 WAS ACCEPTED BY THE AO AND THE RETURN WAS PROCESSED UNDER SECTION 1 43(1) OF THE ACT, THEREBY ACCEPTING THE PURCHASE OF SHARES. THE LD AR ALSO SUBMITTED TH AT EVEN IN THE IMPUGNED ASSESSMENT ORDER, THE PURCHASE OF SHARES BY THE ASSESSEE WAS N OT HELD TO BE BOGUS. THE LD AR SUBMITTED THAT THE EVIDENCES AND DOCUMENTS FURNISHE D BY THE ASSESSEE WERE NEITHER FOUND TO BE FALSE NOR FABRICATED. THE LD AR SUBMIT TED THAT THE AO DOUBTED THE GENUINENESS OF THE SALE TRANSACTIONS ON THE BASIS O F SOME PURPORTED ORDERS OF SEBI AND/OR THE INVESTIGATION WING HOWEVER THE AO HAS ME RELY MENTIONED THE DATE OF A LETTER ISSUED BY THE DIRECTOR OF INVESTIGATION. SAVE AND E XCEPT THE DATE OF THE LETTER, ACCORDING 6 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 6 TO LD AR, THERE IS NOTHING BROUGHT ON RECORD BY THE AO, AS TO HOW THAT INVESTIGATION REPORT CONCERN THE ASSESSEE AND OR THE SHARES SOLD BY THE ASSESSEE. ACCORDING TO LD AR, THE AO COULD NOT EVEN BRING ON RECORD ANY FINDING O R MATERIAL AGAINST THE ASSESSEE OR THE COMPANIES IN WHICH THE ASSESSEE HAD DEALT WITH OR THE STOCK BROKERS THROUGH WHOM THE SHARES WERE SOLD. THE LD AR SUBMITTED THAT THE AO ON PAGES 6-9 OF THE ASSESSMENT ORDER HAD MERELY STATED THAT THE INVESTIGATION WING AND SEBI CONDUCTED SOME INQUIRIES IN RESPECT OF SOME OTHER COMPANIES AND AS PER THE R EPORT PREPARED BY THEM, CERTAIN PATTERNS AND FEATURES WERE IDENTIFIED BY THEM AND A S PER THE AO SUCH PATTERNS AND FEATURES WERE EMERGING IN THE CASE RELATED TO THE C OMPANIES IN WHICH THE ASSESSEE DEALT WITH. HOWEVER SAVE AND EXCEPT MAKING A PASSING REMA RK OR MERE REFERENCE TO SO CALLED PATTERNS, THERE IS NOTHING IN THE ASSESSMENT ORDER BY WHICH IT CAN BE FOUND THAT THE ASSESSEE OR THE COMPANY OR THE BROKERS WERE NAMED I N THE REPORT OF INVESTIGATION. ACCORDING TO LD AR, THE AO IDENTIFIED 10-11 FEATURE S ON PAGE 6-7 OF THE ASSESSMENT ORDER, HOWEVER HOW THIS WAS RELATING TO THE COMPANI ES IN THE CASE OF ASSESSEE WAS NOT AT ALL DEMONSTRATED. THUS ACCORDING TO LD AR, THERE WAS NO MATERIAL WHATSOEVER TO HOLD THAT THE COMPANIES DEALT BY THE ASSESSEE WERE HAVIN G SUCH PATTERN OR FEATURES. IT WAS SUBMITTED THAT THE AO DISALLOWED THE ASSESSEES CL AIM OF LTCG ON SALE OF SHARES ON SURMISES, SUSPICION AND PRESUMPTIONS ALONE. IT WAS SUBMITTED THAT THE LOWER AUTHORITIES HAVE NOT BROUGHT ANY MATERIAL OR EVIDENCE ON RECORD TO FALSIFY THE CLAIM OF THE ASSESSEE OR TO HOLD THAT THE SHARE TRANSACTIONS WERE BOGUS. 6.2 THE LD AR, IN COURSE OF HEARING BEFORE US, FILE D A COPY OF THE AUDITED FINANCIALS OF M/S BSR FINANCE & CONSTRUCTION LTD AND M/S OASIS CINE COMMUNICATION LTD (WHICH WAS RENAMED TO ECOWAVE INFOTECH LTD) FOR THE YEAR ENDED 31/03/2012 & 31/03/2013. IT IS SEEN THAT M/S OASIS CINE COMMUNI CATION LTD WAS INCORPORATED ON 27/10/1978, THUS IN THE YEAR UNDER CONSIDERATION IT WAS THE 34 TH YEAR OF THE EXISTENCE OF THE COMPANY. ON PERUSAL OF THE ACCOUNTS IT WAS SEEN THAT THE COMPANY WAS HAVING SHARE CAPITAL AS ON 31/03/2013 OF RS.57.84 CRORE AN D RESERVE AND SURPLUS OF RS.7.19 7 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 7 CRORE AND WAS HAVING ASSETS WORTH RS.62.33 CRORE. S IMILARLY IT IS SEEN THAT M/S BSR FINANCE & CONSTRUCTION LTD WAS INCORPORATED ON 17/0 2/1993, THUS IN THE YEAR UNDER CONSIDERATION IT WAS THE 19 TH YEAR OF THE EXISTENCE OF THE COMPANY. ON PERUSAL O F THE ACCOUNTS IT WAS SEEN THAT THE COMPANY WAS HAVING SH ARE CAPITAL AS ON 31/03/2013 OF RS.33.44 CRORE AND RESERVE AND SURPLUS OF RS.17.81 CRORE AND WAS HAVING ASSETS WORTH RS.52.29 CRORE AND A TURNOVER OF RS.6.97 CRORE AS A GAINST A TURNOVER OF RS.2.01 CRORE AS ON 31/03/2012. THE LD AR SUBMITTED THAT AS THESE CO MPANIES WERE IN EXISTENCES FOR SEVERAL YEARS RATHER DECADES HE CONCLUDED THAT IN S UCH CIRCUMSTANCES, THE MERGER OF THE TWO COMPANIES BY THE ORDER OF HONBLE CALCUTTA HIGH COURT COULD NOT BE SAID TO BE A PRE PLANNED ARRANGEMENT TO GIVE BENEFIT OF LTCG TO BENEFICIARIES. ACCORDING TO LD AR, CONSIDERING THE BALANCE SHEETS AND ASSET POSITION O F THE COMPANY ANY ORDINARY INVESTOR COULD INVEST IN THE COMPANY. THE LD AR DREW OUR AT TENTION TO THE FACT THAT THE SALE OF SHARES WAS MADE ON THE ONLINE PLATFORM OF THE STOCK EXCHANGE; THEREFORE ACCORDING TO LD AR, THE ASSESSEE DID NOT KNOW THE NAMES OF THE BUYE RS AND HAS NO CONNECTION AND/OR RELATIONS WITH ANY SUCH PERSONS. THE TRANSACTIONS O F SALE OF SHARES WERE ONLINE TRADING SYSTEM THROUGH HIS BROKER FROM WHOM HE RECEIVED THE SALE CONSIDERATION. THE BROKER ALSO RECEIVES PAYMENTS FOR ALL HIS TRANSACTIONS FRO M STOCK EXCHANGE. THE SELLER AND THE BUYER CANNOT KNOW THE NAMES OF EACH OTHER AS WELL A S THEIR RESPECTIVE BROKERS, WHO WERE INVOLVED IN THE TRADING TRANSACTIONS IN THE SE CONDARY PLATFORM. IN SUCH A SITUATION ACCORDING TO LD AR, IT CANNOT BE PRESUMED THAT THER E COULD BE ANY TRANSFER OF CASH BETWEEN THE BUYERS AND SELLERS TO CONVERT THE UNACC OUNTED MONEY OF THE BENEFICIARIES AS ALLEGED BY THE AO. THE LD AR REFERRED TO THE JUDGEM ENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. LAVANYA LAND PVT. LTD. [2017 ] 83 TAXMANN.COM 161 (BOM) TO CONTEND THAT THERE WAS NO EVIDENCE WHATSOEVER TO AL LEGE THAT MONEY CHANGED HANDS BETWEEN THE ASSESSEE AND THE BROKER OR ANY OTHER PE RSON INCLUDING THE ALLEGED EXIT PROVIDER WHATSOEVER TO CONVERT UNACCOUNTED MONEY FO R GETTING BENEFIT OF LTCG AS ALLEGED. IN THE SAID CASE, THE HONBLE HIGH COURT AT PARA 21 HELD THAT IN ABSENCE OF ANY 8 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 8 MATERIAL TO SHOW THAT HUGE CASH WAS TRANSFERRED FRO M ONE SIDE TO ANOTHER, ADDITION CANNOT BE SUSTAINED. SIMILAR VIEW WAS TAKEN IN THE FOLLOWING CASES:- (I) BAIJNATH AGARWALLA VS. ACIT [2010] 40 SOT 475 (AGRA THIRD MEMBER) (II) GANESHMULL BIIJAY SINGH BAID HUF VS. DCIT ITA NO. 544/KOL/13 DATED 4.12.2015 (KOLKATA TRIBUNAL) (III) MALTI GHANSHYAMBHAI PATODIA VS. ITO ITA NO. 3400/ AHD/2015 (AHMEDABAD TRIBUNAL) (IV) PRATIK SURYAKANT SHAH VS. ITO [ 2017] 77 TAXMANN.C OM 260 (AHMEDABAD TRIBUNAL) (V) PADDUCHARI JEEVAN PRASHANT VS. ITO ITA NO. 452/HY D/2015 (HYDERABAD TRIBUNAL) (VI) ANIL NAND KISHORE GOYAL VS.ACIT ITA NOS. 1256/PN/ 2012 (PUNE TRIBUNAL) (VII) CIT VS. JAMNA DEVI AGRAWAL [2012] 20 TAXMANN.COM 529 (BOM HC) 6.3. THE LD AR SUBMITTED THAT ALL THE OBSERVATIONS, CONCLUSIONS AND FINDINGS OF THE LOWER AUTHORITIES ARE BASED ON SUSPICION, SURMISES AND HEARSAY. ACCORDING TO LD AR, IT IS TRITE LAW THAT THE SUSPICION HOWSOEVER STRONG, CANN OT PARTAKE THE CHARACTER OF LEGAL EVIDENCE. REFERENCE WAS MADE TO THE JUDGEMENT OF HONBLE SUPREME COURT IN THE CASE OF LALCHAND BHAGAT AMBICA RAM VS. CIT (1959) 37 ITR 288 (SC, , UMACHARAN SHAW 37 ITR 271 AND OMAR SALAY MOHAMED SAIT 37 ITR 151 . THE LD AR SUBMITTED THAT THE ENTIRE CASE OF THE REVENUE IS BASED UPON THE PRESUM PTION THAT THE ASSESSEE HAS PLOUGHED BACK HIS OWN UNACCOUNTED MONEY IN THE FORM OF BOGUS LTCG. HOWEVER, THIS PRESUMPTION OR SUSPICION HOW STRONG IT MAY APPEAR T O BE TRUE, BUT NEEDS TO BE CORROBORATED BY SOME EVIDENCE TO ESTABLISH A LINK T HAT THE ASSESSEE HAD BROUGHT BACK HIS UNACCOUNTED INCOME IN THE FORM OF LTCG. THE LD AR R EFERRED TO THE JUDGEMENT OF SPECIAL BENCH OF MUMBAI TRIBUNAL IN THE CASE OF GTC INDUSTRIES LTD. VS. ACIT [2017] 164 ITD 1 (MUMBAI-TRIB.)(SB) THE TRIBUNAL OBSERVED AS UNDER: 9 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 9 46. ......... ULTIMATELY THE ENTIRE CASE OF REVENUE HINGES UPON THE PRESUMPTION THAT ASSESSEE IS BOUND TO HAVE SOME LAR GE SHARE IN SO CALLED SECRET MONEY IN THE FORM OF PREMIUM AND ITS CIRCULA TION. HOWEVER, THIS PRESUMPTION OR SUSPICION HOW STRONG IT MAY APPEAR T O BE TRUE BUT NEEDS TO BE CORROBORATED BY SOME EVIDENCE TO ESTABLISH A LINK T HAT GTC ACTUALLY HAD SOME KIND OF A SHARE IN SUCH SECRET MONEY. IT IS QU ITE A TRITE LAW THAT SUSPICION HOWSOEVER STRONG MAY BE BUT CANNOT BE THE BASIS OF ADDITION EXCEPT FOR SOME MATERIAL EVIDENCE ON RECORD. THE THEORY OF PREPONDERANCE OF PROBABILITY IS APPLIED TO WEIGH THE EVIDENCES OF E ITHER SIDE AND DRAW A CONCLUSION IN FAVOUR OF A PARTY WHICH HAS MORE FAVO URABLE FACTORS IN HIS SIDE. THE CONCLUSIONS HAVE TO BE DRAWN ON THE BASIS OF CE RTAIN ADMITTED FACTS AND MATERIALS AND NOT ON THE BASIS OF PRESUMPTIONS OF F ACTS THAT MIGHT GO AGAINST THE ASSESSEE. ONCE NOTHING HAS BEEN PROVED AGAINST THE ASSESSEE WITH AID OF ANY DIRECT MATERIAL ESPECIALLY WHEN VARIOUS ROUNDS OF INVESTIGATIONS HAVE BEEN CARRIED OUT, THEN NOTHING CAN BE IMPLICATED AG AINST THE ASSESSEE . 6.4 THE LD AR SUBMITTED THAT THERE IS NO DIRECT EVI DENCE AGAINST THE ASSESSEE BROUGHT ON RECORD BY AO TO HOLD THAT THE ASSESSEE INTRODUCE D HIS OWN UNACCOUNTED MONEY BY WAY OF BOGUS LTCG. THE LD AR SUBMITTED THAT ALTHOUG H VARIOUS INVESTIGATIONS WERE CARRIED OUT BY DIFFERENT AGENCIES, THERE IS NO EVID ENCE AGAINST THE ASSESSEE AND/OR THE BROKERS AND/OR THE COMPANIES IN WHICH THE ASSESSEE DEALT WITH TO HOLD THAT THE ASSESSEE WAS A BENEFICIARY TO THE MODUS OPERANDI ADOPTED BY DIFFERENT ENTITIES / BROKERS / ENTRY OPERATORS. THE LD AR SUBMITTED THAT, IN VIEW OF T HE AFORESAID JUDGEMENT OF SPECIAL BENCH OF MUMBAI TRIBUNAL, VARIOUS CASE LAWS RELIE D ON BY THE AO AGAINST THE ASSESSEE ARE IRRELEVANT IN AS MUCH AS THE SAID ORDERS ARE BA SED ON CONCLUSIONS DRAWN ON THE BASIS OF CIRCUMSTANTIAL EVIDENCES ONLY WITHOUT ANY MATERI AL EVIDENCE ON RECORD AND CANNOT BE APPLIED IN THE CASE IN HAND BECAUSE ASSESSEE HAS DI SCHARGED THE BURDEN OF PROOF BY PRODUCING RELEVANT LEGALLY ADMISSIBLE EVIDENCE, WHI CH THE AO COULD NOT FIND FAULT WITH. 6.5 THE LD AR VEHEMENTLY SUBMITTED THAT THE ASSESSE E HAS FURNISHED ALL EVIDENCES IN SUPPORT OF THE CLAIM OF THE ASSESSEE THAT IT EARNED LTCG ON TRANSACTIONS OF HIS INVESTMENT IN SHARES. THE PURCHASE OF SHARES HAD BE EN ACCEPTED BY THE AO IN THE YEAR OF ITS ACQUISITION AND THEREAFTER UNTIL THE SAME WE RE SOLD. THE OFF MARKET TRANSACTION FOR 10 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 10 PURCHASE OF SHARES IS NOT ILLEGAL AS WAS HELD BY TH E DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF DOLARRAI HEMANI VS. ITO IN ITA NO. 19/KOL/2014 DATED 2.12.2016 . THE TRANSACTIONS WERE ALL THROUGH ACCOUNT PAYEE C HEQUES AND REFLECTED IN THE BOOKS OF ACCOUNTS. THE PURCHASE OF SHARES AND THE S ALE OF SHARES WERE ALSO REFLECTED IN DEMAT ACCOUNT STATEMENTS. THE SALE OF SHARES SUFFER ED STT, BROKERAGE ETC. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IT CANNOT BE HELD TH AT THE TRANSACTIONS WERE BOGUS. THE LD AR REFERRED TO THE FOLLOWING JUDGMENTS OF JURISDICT IONAL HIGH COURT:- (I) M/S CLASSIC GROWERS LTD. VS. CIT [ITA NO. 129 OF 20 12] (CAL HC) IN THIS CASE THE LD AO FOUND THAT THE FORMAL EVIDENCES PROD UCED BY THE ASSESSEE TO SUPPORT HUGE LOSSES CLAIMED IN THE TRANSACTIONS OF PURCHASE AND SALE OF SHARES WERE STAGE MANAGED. THE HONBLE HIGH COURT HELD THAT THE OPINION OF THE AO THAT THE ASSESSEE GENERATED A SIZEABLE AMOUNT OF LOSS OUT OF PREARRANGED TRANSACT IONS SO AS TO REDUCE THE QUANTUM OF INCOME LIABLE FOR TAX MIGHT HAVE BEEN THE VIEW EXPR ESSED BY THE LD AO BUT HE MISERABLY FAILED TO SUBSTANTIATE THAT. THE HIGH COU RT HELD THAT THE TRANSACTIONS WERE AT THE PREVAILING PRICE AND THEREFORE THE SUSPICION OF THE AO WAS MISPLACED AND NOT SUBSTANTIATED. (II) CIT V. LAKSHMANGARH ESTATE & TRADING CO. LIMITED [2 013] 40 TAXMANN.COM 439 (CAL) IN THIS CASE THE HONBLE CALCUTTA HIGH COURT HELD T HAT ON THE BASIS OF A SUSPICION HOWSOEVER STRONG IT IS NOT POS SIBLE TO RECORD ANY FINDING OF FACT. AS A MATTER OF FACT SUSPICION CAN NEVER TAKE THE PLACE OF PROOF. IT WAS FURTHER HELD THAT IN ABSENCE OF ANY EVIDENCE ON RECORD, IT IS DIFFICULT IF NOT IMPOSSIBLE, TO HOLD THAT THE TRANSACTIONS OF BUYING OR SELLING OF SHARES WERE CO LOURABLE TRANSACTIONS OR WERE RESORTED TO WITH ULTERIOR MOTIVE. (III) CIT V. SHREYASHI GANGULI [ITA NO. 196 OF 2012] (CAL HC) IN THIS CASE THE HONBLE CALCUTTA HIGH COURT HELD THAT THE ASSESSING OFFICER DOUBTED THE TRANSACTIONS 11 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 11 SINCE THE SELLING BROKER WAS SUBJECTED TO SEBIS AC TION. HOWEVER THE TRANSACTIONS WERE AS PER NORMS AND SUFFERED STT, BROKERAGE, SERVICE T AX, AND CESS. THERE IS NO IOTA OF EVIDENCE OVER THE TRANSACTIONS AS IT WERE REFLECTED IN DEMAT ACCOUNT. THE APPEAL FILED BY THE REVENUE WAS DISMISSED. (IV) CIT V. RUNGTA PROPERTIES PRIVATE LIMITED [ITA NO. 1 05 OF 2016] (CAL HC) IN THIS CASE THE HONBLE CALCUTTA HIGH COURT AFFIRM ED THE DECISION OF THIS TRIBUNAL , WHEREIN, THE TRIBUNAL ALLOWED THE APPEAL OF THE ASS ESSEE WHERE THE AO DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE IN RESPECT OF HIS T RANSACTIONS IN ALLEGED PENNY STOCKS. THE TRIBUNAL FOUND THAT THE AO DISALLOWED THE LOSS ON T RADING OF PENNY STOCK ON THE BASIS OF SOME INFORMATION RECEIVED BY HIM. HOWEVER, IT WAS A LSO FOUND THAT THE AO DID NOT DOUBT THE GENUINENESS OF THE DOCUMENTS SUBMITTED BY THE ASSESSEE. THE TRIBUNAL HELD THAT THE AOS CONCLUSIONS ARE MERELY BASED ON THE I NFORMATION RECEIVED BY HIM. THE APPEAL FILED BY THE REVENUE WAS DISMISSED. (V) CIT V. ANDAMAN TIMBERS INDUSTRIES LIMITED [ITA NO. 721 OF 2008] (CAL HC) IN THIS CASE THE HONBLE CALCUTTA HIGH COURT AFFIR MED THE DECISION OF THIS TRIBUNAL WHEREIN THE LOSS SUFFERED BY THE ASSESSEE WAS ALLOWED SINCE THE AO FAILED TO BRING ON RECORD ANY EVIDENCE TO SUGGEST THAT THE SA LE OF SHARES BY THE ASSESSEE WERE NOT GENUINE. (VI) CIT V. BHAGWATI PRASAD AGARWAL [2009- TMI-34738 (CA L HC) IN ITA NO. 22 OF 2009 DATED 29.4.2009] IN THIS CASE THE ASSESSEE CLAIMED EXEMPTION OF INCO ME FROM LONG TERM CAPITAL GAINS. HOWEVER, THE AO, BASE D ON THE INFORMATION RECEIVED BY HIM FROM CALCUTTA STOCK EXCHANGE FOUND THAT THE TRA NSACTIONS WERE NOT RECORDED THEREAT. HE THEREFORE HELD THAT THE TRANSACTIONS WERE BOGUS. THE HONBLE JURISDICTIONAL HIGH COURT, AFFIRMED THE DECISION OF THE TRIBUNAL WHEREI N IT WAS FOUND THAT THE CHAIN OF TRANSACTIONS ENTERED INTO BY THE ASSESSEE HAVE BEEN PROVED, ACCOUNTED FOR, DOCUMENTED 12 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 12 AND SUPPORTED BY EVIDENCE. IT WAS ALSO FOUND THAT T HE ASSESSEE PRODUCED THE CONTRACT NOTES, DETAILS OF DEMAT ACCOUNTS AND PRODUCED DOCUM ENTS SHOWING ALL PAYMENTS WERE RECEIVED BY THE ASSESSEE THROUGH BANKS. ON THESE FA CTS, THE APPEAL OF THE REVENUE WAS SUMMARILY DISMISSED BY HIGH COURT. 6.6. THE LD AR SUBMITTED BEFORE US THAT WHERE TH E PURCHASE AND SALE TRANSACTIONS ARE SUPPORTED AND EVIDENCED BY BILLS, CONTRACT NOTES, D EMAT STATEMENTS AND BANK STATEMENTS ETC., AND WHEN THE TRANSACTIONS OF PURCH ASE OF SHARES WERE ACCEPTED BY THE LD AO IN EARLIER YEARS, THE SAME COULD NOT BE TREATED AS BOGUS SIMPLY ON THE BASIS OF SOME REPORTS OF THE INVESTIGATION WING AND/OR THE ORDERS OF SEBI AND/OR THE STATEMENTS OF THIRD PARTIES. IN SUPPORT OF THE AFORESAID SUBMISSI ONS, THE LD AR, IN ADDITION TO THE AFORESAID JUDGEMENTS, HAS REFERRED TO AND RELIED ON THE FOLLOWING CASES:- (I) BAIJNATH AGARWAL VS. ACIT [2010] 40 SOT 475 (AGRA (TM) (II) ITO VS. BIBI RANI BANSAL [2011] 44 SOT 500 (AGRA) (TM) (III) ITO VS. ASHOK KUMAR BANSAL ITA NO. 289/AGRA/2009 (AGRA ITAT) (IV) ACIT VS. AMITA AGARWAL & OTHERS ITA NOS. 247/(KOL )/ OF 2011 (KOL ITAT) (V) RITA DEVI & OTHERS VS. DCIT IT(SS))A NOS. 22-26/K OL/2P11 (KOL ITAT) (VI) SURYA PRAKASH TOSHNIWAL VS. ITO ITA NO. 1213/KOL/ 2016 (KOL ITAT) (VII) SUNITA JAIN VS. ITO ITA NO. 201 & 502/AHD/2016 (A HMEDABAD ITAT) (VIII) MS. FARRAH MARKER VS. ITO ITA NO. 3801/MUM/2011 ( MUMBAI ITAT) (IX) ANIL NANDKISHORE GOYAL VS. ACIT ITA NOS. 1256/PN/ 2012 (PUNE ITAT) (X) CIT VS. SUDEEP GOENKA [2013] 29 TAXMANN.COM 402 ( ALLAHABAD HC) (XI) CIT VS. UDIT NARAIN AGARWAL [2013] 29 TAXMANN.COM 76 (ALLAHABAD HC) (XII) CIT VS. JAMNADEVI AGARWAL [2012] 20 TAXMANN.COM 529 (BOMBAY HC) (XIII) CIT VS. HIMANI M. VAKIL [2014] 41 TAXMANN.COM 425 (GUJARAT HC) (XIV) CIT VS. MAHESHCHANDRA G. VAKIL [2013] 40 TAXMANN. COM 326 (GUJARAT HC) (XV) CIT VS. SUMITRA DEVI [2014] 49 TAXMANN.COM 37 (RAJA STHAN HC) 13 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 13 (XVI) GANESHMULL BIJAY SINGH BAID HUF VS. DCIT ITA NOS. 544/KOL/2013 (KOLKATA ITAT) (XVII) MEENA DEVI GUPTA & OTHERS VS. ACIT ITA NOS. 4512 & 4513/AHD/2007 (AHMEDABAD ITAT) (XVIII) MANISH KUMAR BAID ITA 1236/KOL/2017 (KOLKATA ITAT) (XIX) MAHENDRA KUMAR BAID ITA 1237/KOL/2017 (KOLKATA ITAT ) 6.7 THE LD AR FURTHER SUBMITTED BEFORE US THAT ONCE THE ASSESSEE HAS FURNISHED ALL EVIDENCES IN SUPPORT OF THE GENUINENESS OF THE TRAN SACTIONS, THE ONUS TO DISPROVE THE SAME IS ON REVENUE. HE REFERRED TO THE JUDGEMENT OF HONBLE SUPREME COURT IN THE CASE OF KRISHNANAND AGNIHOTRI VS. THE STATE OF MADHYA PR ADESH [1977] 1 SCC 816 (SC) . IN THIS CASE THE HONBLE APEX COURT HELD THAT THE BURD EN OF SHOWING THAT A PARTICULAR TRANSACTION IS BENAMI AND THE APPELLANT OWNER IS NO T THE REAL OWNER ALWAYS RESTS ON THE PERSON ASSERTING IT TO BE SO AND THE BURDEN HAS TO BE STRICTLY DISCHARGED BY ADDUCING EVIDENCE OF A DEFINITE CHARACTER WHICH WOULD DIRECT LY PROVE THE FACT OF BENAMI OR ESTABLISH CIRCUMSTANCES UNERRINGLY AND REASONABLY R AISING INFERENCE OF THAT FACT. THE HONBLE APEX COURT FURTHER HELD THAT IT IS NOT ENOU GH TO SHOW CIRCUMSTANCES WHICH MIGHT CREATE SUSPICION BECAUSE THE COURT CANNOT DEC IDE ON THE BASIS OF SUSPICION. IT HAS TO ACT ON LEGAL GROUNDS ESTABLISHED BY EVIDENCE. TH E LD AR SUBMITTED THAT SIMILAR VIEW HAS BEEN TAKEN IN THE FOLLOWING JUDGMENTS WHILE DEC IDING THE ISSUE RELATING TO EXEMPTION CLAIMED BY THE ASSESSEE ON LTCG ON ALLEGE D PENNY SOCKS. (I) ITO VS. ASHOK KUMAR BANSAL ITA NO. 289/AGR/2009 ( AGRA ITAT) (II) ACIT VS. J. C. AGARWAL HUF ITYA NO. 32/AGR/2007 ( AGRA ITAT) 6.8. THE LD AR FURTHER SUBMITTED THAT THE AO WAS NO T JUSTIFIED IN TAKING AN ADVERSE VIEW AGAINST THE ASSESSEE ON THE GROUND OF ABNORMAL PRICE RISE OF THE SHARES AND ALLEGING PRICE RIGGING. IT WAS SUBMITTED THAT THERE IS NO AL LEGATION IN ORDERS OF SEBI AND/OR THE ENQUIRY REPORT OF THE INVESTIGATION WING TO THE EFF ECT THAT THE ASSESSEE, THE COMPANIES 14 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 14 DEALT IN AND/OR HIS BROKER WAS A PARTY TO THE PRICE RIGGING OR MANIPULATION OF PRICE IN CSE. THE LD AR REFERRED TO THE FOLLOWING JUDGMENTS IN SUPPORT OF THIS CONTENTION WHEREIN UNDER SIMILAR FACTS OF THE CASE IT WAS HELD THAT THE AO WAS NOT JUSTIFIED IN REFUSING TO ALLOW THE BENEFIT UNDER SECTION 10(38) OF THE ACT AND TO ASSESS THE SALE PROCEEDS OF SHARES AS UNDISCLOSED INCOME OF THE ASS ESSEE UNDER SECTION 68 OF THE ACT :- (I) ITO VS. ASHOK KUMAR BANSAL ITA NO. 289/AGR/2009 ( AGRA ITAT) (II) ACIT VS. AMITA AGARWAL & OTHERS - ITA NOS. 247/(KO L)/ OF 2011 (KOL ITAT) (III) LALIT MOHAN JALAN (HUF) VS. ACIT ITA NO. 693/KOL /2009 (KOL ITAT) (IV) MUKESH R. MAROLIA VS. ADDL. CIT [2006] 6 SOT 247 (MUM) 6.9 THE LD AR ALSO SUBMITTED THAT THE AO WAS NOT J USTIFIED IN DISALLOWING THE ASSESSEES CLAIM OF EXEMPTION UNDER SECTION 10(38) OF THE ACT BY CONCLUDING THAT THE TRANSACTIONS OF THE ASSESSEE RESULTING IN LTCG ON SALE OF SHARES WERE BOGUS RELYING ON THE STATEMENTS OF VARIOUS PERSONS RECORDED BY INVESTIGATION WING W HEREIN THESE PERSONS ACCEPTED TO HAVE PROVIDED ACCOMMODATION ENTRIES OF VARIOUS NATU RES INCLUDING LTCG TO DIFFERENT PERSONS. THE LD AR SUBMITTED THAT IN THE STATEMENT OF THIRD PARTIES, THE NAME OF THE ASSESSEE WAS NOT IMPLICATED. EVEN OTHERWISE, NO ADV ERSE INFERENCE COULD BE TAKEN AGAINST THE ASSESSEE ON THE BASIS OF UNTESTED STATE MENTS WITHOUT ALLOWING OPPORTUNITY OF CROSS-EXAMINATION. THE LD AR REFERRED TO AND RELIED ON THE FOLLOWING JUDGEMENTS IN SUPPORT OF THE AFORESAID SUBMISSIONS:- (I) ANDMAN TIMBER INDUSTRIES VS. CCE [2015] 62 TAXMAN N.COM 3 (SC) (II) ITO VS. ASHOK KUMAR BANSAL ITA NO. 289/AGR/2009 (AGRA ITAT) (III) ACIT VS. AMITA AGARWAL & OTHERS ITA NO. 247/(KOL) OF 2011 (KOL ITAT) (IV) ITO VS. BIJAYA GANGULY - ITA NOS. 624 & 625/KOL/20 11 (KOL ITAT) (V) GANESHMULL BIJAY SINGH BAID HUF VS. DCIT ITA NOS. 544/KOL/2013 (KOLKATA ITAT) (VI) RITA DEVI & OTHERS VS. DCIT IT(SS))A NOS. 22-26/K OL/2P11 (KOL ITAT) 15 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 15 (VII) MALTI GHANSHYAMBHAI PATADIA VS. ITO - ITA NO.3400/ AHD/2015 (AHMEDABAD ITAT) (VIII) PRATIK SURYAKANT SHAH VS. ITO [2017] 77 TAXMANN.C OM 260 (AHMEDABAD ITAT) (IX) SUNITA JAIN VS. ITO - ITA NO. 201 & 502/AHD/2016 (A HMEDABAD ITAT) (X) ATUL KUMAR KHANDELWAL VS. DCIT ITA NO. 874/DEL/20 16 (DELHI ITAT) (XI) FARAH MARKER VS. ITO ITA NO. 3801/MUM/2011 (MUMBA I ITAT) 6.10. THE LD AR ALSO SUBMITTED THAT THE AO WAS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 68 OF THE ACT TO HOLD THAT THE SALE PROC EEDS OF SHARES ARE UNEXPLAINED CASH CREDITS IN THE HANDS OF THE ASSESSEE. ACCORDING TO HIM, THERE IS NO EVIDENCE ON RECORD TO DISBELIEVE THAT THE ASSESSEE SOLD SHARES THROUGH RE GISTERED SHARE AND STOCK BROKER WITH CALCUTTA STOCK EXCHANGE. THE ASSESSEE PRODUCED ALL EVIDENCES TO EXPLAIN THE SOURCE OF THE AMOUNTS RECEIVED BY THE ASSESSEE FROM THE BROKE RS, THEREFORE ACCORDING TO LD AR, THE AO WAS NOT JUSTIFIED IN ASSESSING THE SALE PROCEEDS OF SHARES AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. 7. ON THE OTHER HAND, THE LD. DR VEHEMENTLY OPPOSE D THE PLEA OF THE LD. AR AND RELIED ON THE DECISION OF THE LD CIT(A) AND THE AO AND URGED BEFORE THE BENCH NOT TO INTERFERE WITH THE ORDER OF THE LD CIT (A). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE IMPUGNED ORDER AND HAVE GONE THROUGH THE DECISIONS OF THE HONBLE APEX COUR T AND HIGH COURTS RELIED ON BY BOTH THE PARTIES. WE NOTE THAT IN THE PRESENT CASE THE APPELLANT HAD PURCHASED 400 SHARES OF M/S. QUICK MANAGEMENT SERVICES PRIVATE LI MITED IN F.Y. 2010-11 FOR A CONSIDERATION OF RS.1,00,000/- AND AGAINST THOSE SH ARES AS A RESULT OF AMALGAMATION ORDERED BY THE HONBLE CALCUTTA HIGH COURT, THE ASS ESSEE GOT 6400 SHARES OF M/S. BSR FINANCE & CONSTRUCTION LIMITED; AND WHEN THESE ENTI RE SHARES WERE SOLD DURING THE 16 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 16 FINANCIAL YEAR 2012-13 RECEIVED A CONSIDERATION OF RS.12,29.011/-. WE ALSO NOTE THAT THE ASSESSEE HAD PURCHASED 200 SHARES OF M/S GRAVIT Y BARTER LIMITED FOR A CONSIDERATION OF RS. 1,00,000/- IN THE FINANCIAL YEAR 2010-11 AND AS AGAINST THESE SHARES AS A RESULT OF AMALGAMATION, THE ASSESSEE GOT 8800 SHARES OF M/S. OASIS CINE COMMUNICATION LIMITED (WHICH WAS RENAMED TO ECO WAVE INFOTECH LTD); AND WHEN PART OF THIS I.E. 5800 SHARES WERE SOLD DURING THE FINANCIAL YEAR 2012-13 RECEIVE D A CONSIDERATION OF RS.18,94,780/- AND THIS RESULTED IN LONG TERM CAPITAL GAIN OF RS.2 9,57,981/-. WE TAKE NOTE THAT IN SUPPORT OF THE TRANSACTIONS OF THE PURCHASE, MERGER AND SALE OF SHARES LEADING TO CAPITAL GAINS, THE ASSESSEE HAS SUBMITTED THE FOLLOWING DOC UMENTS :- I)THE BALANCE SHEET OF THE ASSESSEE FOR THE FINANCI AL YEAR 2010-11 WHEREIN THE INVESTMENT OF RS.2 LAKHS MADE IN SHARES WERE DULY R ECORDED AND REFLECTED; II) THE BILLS FOR PURCHASE OF SHARES OF M/S. QUICK MANAGEMENT SERVICES PRIVATE LIMITED; III) BILLS FOR PURCHASE OF SHARES OF M/S. GRAVITY B ARTER LIMITED; IV)THE BANK STATEMENTS MAINTAINED WITH SOUTH INDIAN BANK LTD. REFLECTING THE PAYMENT OF RS.2 LAKHS TO PURCHASE THE SHARES OF M/S. QUICK MANAGEMENT SERVICES PRIVATE LIMITED AND M/S. GRAVITY BARTER LIMITED; V)THE DOCUMENTS RELATING TO THE MERGER OF M/S. GRAV ITY BARTER LIMITED WITH M/S. OASIS CINE COMMUNICATION LIMITED APPROVED BY THE HONBLE CALCUTTA HIGH COURT IN CA NO.519 OF 2011; VI) THE DOCUMENTS RELATING TO THE MERGER OF M/S. QU ICK MANAGEMENT SERVICES PRIVATE LIMITED WITH M/S. BSR FINANCE & CONSTRUCTION LIMITE D APPROVED BY THE HONBLE CALCUTTA HIGH COURT IN CA NO.575 OF 2011; VII) THE LETTER OF ALLOTMENTS FOR THE SHARES HOLDIN G IN M/S. QUICK MANAGEMENT SERVICES PRIVATE LIMITED AND EXCHANGE WITH THE SHARES OF M/S . BSR FINANCE & CONSTRUCTION LIMITED IN TERMS OF THE RATIO AS APPROVED BY THE HO NBLE CALCUTTA HIGH COURT IN CA NO.575 OF 2011; VIII) THE CHANGE OF NAME NOTICE ISSUED BY THE CALCU TTA STOCK EXCHANGE DATED 17.10.2012 AS MEMBER. IT WAS STATED THAT THE NAME O F M/S. OASIS CINE COMMUNICATION 17 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 17 LIMITED WAS CHANGED TO M/S. ECO WAVE INFOTECH LTD, IN TERMS OF THE FRESH CERTIFICATE OF INCORPORATION ISSUED BY THE REGISTRAR OF COMPANIES. IX) COPIES OF SHARE CERTIFICATES ISSUED BY M/S. BSR FINANCE & CONSTRUCTION LIMITED IN TERMS OF THE RATIO AS APPROVED BY THE HONBLE CALCU TTA HIGH COURT IN CA NO.575 OF 2011; X) COPY OF THE SHARE CERTIFICATES ISSUED OF M/S. OA SIS CINE COMMUNICATION LIMITED IN TERMS OF THE RATIO AS APPROVED BY THE HONBLE CALCU TTA HIGH COURT IN CA NO.519 OF 2011. XI) COPY OF THE CONTRACT NOTES ISSUED BY MR. BIKASH SUREKHA, MEMBER OF CALCUTTA STOCK EXCHANGE HAVING SAME REGISTRATION NO.INB031119713 A ND CODE NO.03/995 FOR SALE OF SHARES OF M/S BSR FINANCE & CONSTRUCTION LIMITED ; XII) COPY OF THE CONTRACT NOTES ISSUED BY MR. S.K.K HEMKA, MEMBER OF THE CALCUTTA STOCK EXCHANGE HAVING SAME REGISTRATION NO.INB03007 1512 AND CODE NO.3/577 FOR SALE OF SHARES OF M/S. OASIS CINE COMMUNICATION LIM ITED WHICH WAS RENAMED AS ECO WAVE INFOTECH LTD. XIII) THE BANK STATEMENT MAINTAINED WITH SOUTH INDI AN BANK LTD. REFLECTING THE PAYMENT RECEIVED FOR THE SALE OF SHARES OF M/S. OAS IS CINE COMMUNICATION LIMITED AND M/S. OASIS CINE COMMUNICATION LIMITED (WHICH WAS RE NAMED WITH ECO WAVE INFOTECH LTD.) COPY OF THE DEMAND STATEMENT OF THE ASSESSEE MAINTAINED WITH REPOSITORY PARTICIPANT M/S SHRI BAHUBALI INTERNATIONAL LTD. SB IL-000764 CLIENT ID-10015233 SHOWING THAT THE SHARES WERE HELD IN DEMAT FORM AND DELIVERED TO THE BROKER IN THE DEMAT FORM. XIV) COPY OF THE BALANCE SHEET AND PROFIT AND LOSS ACCOUNT OF M/S. BSR FINANCE & CONSTRUCTION LIMITED AND M/S. OASIS CINE COMMUNICAT ION LIMITED (WHICH WAS RENAMED WITH ECO WAVE INFOTECH LTD.) FOR THE YEAR E NDED ON 31.03.2012 AD 31.03.2013. 8.1. WE NOTE IN THE LIGHT OF THE AFORESAID RELE VANT EVIDENCES, THE ACTION OF THE AO AND CIT(A) WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE ON THE BASIS OF THEORY OF 18 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 18 SURROUNDING CIRCUMSTANCES AND HUMAN CONDUCT AND PRE PONDERANCE OF PROBABILITY AGAINST THE ASSESSEE. FOR THAT WE RELY ON THE DECIS ION OF THE SPECIAL BENCH OF MUMBAI TRIBUNAL IN THE CASE OF GTC INDUSTRIES LTD. VS ACIT (SUPRA) FOR THIS PROPOSITION. THE VARIOUS FACETS OF THE CONTENTION OF THE LD. AR(SUPR A), TO ROPE IN THE ASSESSEE AND FOR DRAWING ADVERSE INFERENCES, WHICH REMAIN UNPROVED B ASED ON THE EVIDENCE AVAILABLE ON RECORD ARE NOT REITERATED FOR THE SAKE OF BREVITY. THE PRINCIPLES LAID DOWN IN VARIOUS CASE LAWS RELIED UPON BY THE LD. AR ARE ALSO NOT REITERA TED FOR THE SAKE OF BREVITY. 8.2. IT IS TO BE KEPT IN MIND THAT THE ASSESSEE ACQ UIRED MORE SHARES AS A RESULT OF THE SCHEME OF AMALGAMATION WHICH WAS APPROVED BY THE H ONBLE CALCUTTA HIGH COURT AND THE AUTHORITIES BELOW SHOULD NOT HAVE SIMPLY BR USHED ASIDE THE ORDER OF THE HONBLE CALCUTTA HIGH COURT APPROVING THE MERGER AND AS A C ONSEQUENCE TO THE MERGER, THE SHARES WERE ISSUED AND HENCE THE ACQUISITION OF SHA RES CANNOT BE DISPUTED ON THIS SCORE ALONE AND ARE TO BE HELD AS PROPERLY EXPLAINED. IT SHOULD BE NOTED THAT PUBLIC NOTICES IN VERNACULAR AND ENGLISH NEWS PAPERS ARE GIVEN DURING MERGER/DE-MERGER PROCEEDINGS AND THE MERGER OR AMALGAMATION PROCEEDINGS ARE NOT COND UCTED IN SECRECY. THE MERGER OR AMALGAMATION IS BEING DONE WITH THE KNOWLEDGE OF TH E INCOME-TAX DEPARTMENT AS ADMITTEDLY PURSUANT TO THE DIRECTION OF THE HONBLE HIGH COURT, THE I.T. DEPTT IS ALSO MADE AWARE ABOUT THE HAPPENING OF THE MERGER AND TH E VERY PURPOSE OF MAKING THEM AWARE IS ONLY TO IMPLEAD THEMSELVES IN CASE IF THEY HAVE ANY OBJECTION TO THE PROPOSED MERGER. SO, THE ALLOTMENT OF SHARES AFTER THE MERGE R AS PER THE SCHEME ALLOWED BY THE HONBLE CALCUTTA HIGH COURT CANNOT BE SAID TO BE A BOGUS TRANSACTION. WE NOTE THAT NEITHER THE PURPORTED REPORTS RELIED ON BY THE AO H AS BEEN BROUGHT ON RECORD NOR IS THERE ANY REFERENCE TO ANY FINDING OF SUCH REPORT W HICH DIRECTLY ACCUSES THE ASSESSEE IN ANY WRONGFUL ACTIONS. THE AO HAS MERELY CARVED OUT CERTAIN FEATURES/MODUS-OPERANDI OF COMPANIES INDULGING IN PRACTICES NOT SANCTIONED BY LAW AND AS MENTIONED IN SUCH REPORT. WE NOTE THAT NEITHER ANY INVESTIGATION WERE CARRIED OUT AGAINST THE ASSESSEE, NOR AGAINST THE BROKERS TO WHOM THE ASSESSEE DEALT WITH OR THE COMPANIES IN WHICH THE ASSESSEE DEALT WITH THE PURCHASE AND SALE OF SHARES IN QUESTION WERE DONE BY THE AO. 19 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 19 THUS THE AO HAS FAILED TO BRING ON RECORD ANY MATER IAL CONTAINED IN THE SO CALLED REPORTS WHICH ARE HAVING ADVERSE IMPACT ON THE PART OF THE ASSESSEE. THUS RELIANCE ON SUCH REPORT IS HELD TO BE BAD IN THE EYES OF LAW AND CAN NOT BE SEEN AS A RELEVANT MATERIAL FOR MAKING ANY ADVERSE VIEW OR SADDLE ADDITION AGAINST THE ASSESSEE. 8.3. A PERUSAL OF THE ACCOUNTS OF THE COMPANIES IN QUESTION, WE FIND THAT M/S. OASIS CINE COMMUNICATION LIMITED WAS INCORPORATED ON 27.1 0.1978 AND THUS IN THE YEAR UNDER CONSIDERATION IT WAS THE 34 TH YEAR OF ITS EXISTENCE. ON PERUSAL OF THE ACCOUNTS, IT IS SEEN THAT THE COMPANY WAS HAVING SHARE CAPITAL AS O N 31.03.2013 OF RS.57.84 CRORES AND RESERVE AND SURPLUS OF RS.7.19 CRORES AND WAS H AVING ASSETS WORTH RS.62.33 CRORES. SIMILARLY IT IS SEEN THAT M/S. BSR FINANCE & CONSTR UCTION LIMITED WAS INCORPORATED ON 17.02.1993 AND THUS IN THE YEAR UNDER CONSIDERATION IT WAS THE 19 TH YEAR OF EXISTENCE. ON PERUSAL OF THE ACCOUNT, IT IS SEEN THAT THE COMPAN Y WAS HAVING SHARE CAPITAL AS ON 31.03.2013 OF RS.33.44 CRORES AND RESERVE AND SURPL US OF RS.17.81 CRORES AND WAS HAVING ASSETS WORTH RS.52.29 CRORES AND A TURNOVER OF RS.6.97 CRORES AS AGAINST THE TURN OVER OF RS.2.01 CRORES AS ON 31.03.2012. THUS THE A LLEGATION THAT THESE COMPANIES DID NOT HAVE FINANCIAL CREDENTIALS IS FACTUALLY INCORRE CT AND ON THE FACTS NARRATED ABOVE MAKES THE ORDER OF THE AO PERVERSE AND THIS FINDING OF THE AO IS HELD TO BE ERRONEOUS. AT THE COST OF REPETITIONS, WE FIND THAT THE TRANSA CTIONS OF THE SALE OF SHARES BY THE ASSESSEE WAS DULY SUPPORTED BY RELEVANT EVIDENCES I NCLUDING CONTRACT NOTES, DEMAT STATEMENT, BANK ACCOUNT REFLECTING THE TRANSACTIONS , STOCK BROKERS HAVE CONFIRMED THE TRANSACTIONS, THE STOCK EXCHANGE HAVE CONFIRMED THE TRANSACTIONS, THE SHARES HAVE BEEN SOLD ON THE ONLINE PLATFORM OF THE STOCK EXCHANGE A ND EACH TRADE OF SALE OF SHARES WERE HAVING UNIQUE TRADE NUMBER AND TRADE TIME. IT IS NO T THE CASE OF THE AO THAT THE SHARES WHICH WERE SOLD ON THE DATE MENTIONED IN THE CONTRA CT NOTE WERE NOT THE TRADED PRICE ON THAT PARTICULAR DATE. THE AO DOUBTED THE TRANSACTIO NS DUE TO THE HIGH RISE IN THE STOCK PRICE AND FOR THAT THE ASSESSEE CANNOT BE BLAMED UN LESS THERE WAS ANY MATERIAL/ EVIDENCE TO PROVE THAT THE ASSESSEE OR ANY ONE ON HIS BEHALF HAS RIGGED OR MANIPULATED THE STOCK 20 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 20 PRICE. IT SHOULD BE NOTED THAT THE STOCK EXCHANGE O F SEBI ARE THE STATUTORY AUTHORITY APPOINTED BY THE GOVERNMENT OF INDIA TO ENSURE THAT THERE IS NO STOCK RIGGING OR MANIPULATION. THE AO HAS NOT BROUGHT ANY EVIDENCE O N RECORD TO SHOW THAT THESE AGENCIES HAVE ALLEGED ANY STOCK MANIPULATION AGAINS T THE ASSESSEE OR THE BROKERS OR THE COMPANIES IN QUESTION. IN ABSENCE OF ANY RELEVANT E VIDENCES IT CANNOT BE SAID THAT MERELY BECAUSE THE STOCK PRICE MOVED SHARPLY, THE A SSESSEE WAS TO BE BLAMED FOR BOGUS TRANSACTIONS. IT IS PERTINENT TO NOTE THAT THE ASSE SSEE HAS PURCHASED THE STOCKS THROUGH REGISTERED BROKERS AND THEREAFTER THE ASSESSEE HAS SOLD THE SHARES THROUGH THE REGISTERED SHARE/STOCK BROKERS WITH CALCUTTA STOCK EXCHANGE, A ND BOTH HAVE CONFIRMED THE TRANSACTIONS AND HAVE ISSUED VALID CONTRACT NOTES A S PER LAW; AND THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF PRINCIPAL CIT VS RUNGTA P ROPERTIES IN ITA NO.105 OF 2016 DATED 08 MAY, 2017 WHEREIN IT WAS HELD THAT ON THE LAST POINT, THE TRIBUNAL HELD THAT THE AO HAD NOT BROUGHT RELEVANT MATERIAL TO SHOW THAT T HE TRANSACTIONS IN SHARES OF THE COMPANY INVOLVED WERE FALSE OR FICTITIOUS. IT IS TH E FINDING OF THE AO THAT THE SCRIPTS OF THIS COMPANY WAS EXECUTED BY A BROKER AND THE BROKE R WAS SUSPENDED FOR SOME TIME. IT IS THE ASSESSEES CONTENTION THAT EVEN THOUGH THERE ARE ALLEGATIONS AGAINST THE BROKER, AND FOR THAT REASON THE ASSESSEE CANNOT BE HELD LIA BLE ON THIS POINT, THE TRIBUNAL HELD THAT AS A MATTER OF FACT THE AO DOUBTED THE INTEGRITY O F THE BROKER AND THE BROKER FIRM AND ALSO AO OBSERVED THAT THE ASSESSEE HAD NOT FURNISHED ANY EX PLANATION IN RESPECT OF ANY DISCUSSION OF TRADING OF SHARES. THE AO RELIED THE LOSS OF RS.25, 30,396/- ONLY ON THE BASIS OF INFORMATION SUBMITTED BY STOCK AS FICTITIOUS. THE AO HAS ALSO N OT DOUBTED THE GENUINENESS OF THE DOCUMENTS PLACED BY THE ASSESSEE ON RECORD. THE AOS OBSERVAT ION AND CONCLUSION ARE MERELY BASED ON INFORMATION. THEREFORE ON SUCH BASIS, NO DISALLOWAN CE CAN BE MADE AND ACCORDINGLY WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CT(A), WHO HAS RI GHTLY ALLOWED THE CLAIM OF THE ASSESSEE. THIS GROUND NO.1 OF THE REVENUE IS DISMISSED. WE AGREE WITH THE REASONING OF THE TRIBUNAL ON THIS POINT ALSO. WE DO NOT FIND ANY REASON TO INTERFERE WITH THE IMPUGNED ORDER. THE SU GGESTED QUESTION, IN OUR OPINION DO NOT RAISE ANY SUBSTANTIAL QUESTION OF LAW. 21 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 21 8.4. IN THE LIGHT OF THE DOCUMENTS STATED I.E. (I T O XIV) IN PARA 6(SUPRA) WE FIND THAT THERE IS ABSOLUTELY NO ADVERSE MATERIAL TO IMPLICAT E THE ASSESSEE TO HAVE ENTERED GAMUT OF UNFOUNDED/UNWARRANTED ALLEGATIONS LEVELED BY THE AO AGAINST THE ASSESSEE, WHICH IN OUR CONSIDERED OPINION HAS NO LEGS TO STAND AND THE REFORE HAS TO FALL. WE TAKE NOTE THAT THE LD. DR COULD NOT CONTROVERT THE FACTS SUPPORTED WITH MATERIAL EVIDENCES WHICH ARE ON RECORD AND COULD ONLY RELY ON THE ORDERS OF THE AO/CIT(A). WE NOTE THAT IN THE ABSENCE OF MATERIAL/EVIDENCE THE ALLEGATIONS THAT T HE ASSESSEE/BROKERS GOT INVOLVED IN PRICE RIGGING/MANIPULATION OF SHARES MUST THEREFORE ALSO FAIL. AT THE COST OF REPETITION, WE NOTE THAT THE ASSESSEE HAD FURNISHED ALL RELEVAN T EVIDENCE IN THE FORM OF BILLS, CONTRACT NOTES, DEMAT STATEMENT AND BANK ACCOUNT TO PROVE THE GENUINENESS OF THE TRANSACTIONS RELEVANT TO THE PURCHASE AND SALE OF S HARES RESULTING IN LONG TERM CAPITAL GAIN. THESE EVIDENCES WERE NEITHER FOUND BY THE AO NOR BY THE LD. CIT(A) TO BE FALSE OR FICTITIOUS OR BOGUS. THE FACTS OF THE CASE AND THE EVIDENCE IN SUPPORT OF THE EVIDENCE CLEARLY SUPPORT THE CLAIM OF THE ASSESSEE THAT THE TRANSACTIONS OF THE ASSESSEE WERE GENUINE AND THE AUTHORITIES BELOW WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE THAT INCOME FROM LTCG IS EXEMPTED U/S 10(38) OF THE ACT. FOR COMING TO SUCH A CONCLUSION WE RELY ON THE DECISION OF THE HONBLE C ALCUTTA HIGH COURT IN THE CASE OF M/S. ALIPINE INVESTMENTS IN ITA NO.620 OF 2008 DAT ED 26 TH AUGUST, 2008 WHEREIN THE HIGH COURT HELD AS FOLLOWS : IT APPEARS THAT THERE WAS LOSS AND THE WHOLE TRANS ACTIONS WERE SUPPORTED BY THE CONTRACT NOTES, BILLS AND WERE CARRIED OUT THROUGH RECOGNIZED STOCK BROKER OF THE CALCUTTA STOCK EXCHANGE AND ALL THE BILLS WERE RECE IVED FROM THE SHARE BROKER THROUGH ACCOUNT PAYEE WHICH ARE ALSO FILED IN ACCOR DANCE WITH THE ASSESSMENT. IT APPEARS FROM THE FACTS AND MATERIALS PLA CED BEFORE THE TRIBUNAL AND AFTER EXAMINING THE SAME, THE TRIBUNAL ALLOWED THE APPEAL BY THE ASSESSEE. IN DOING SO THE TRIBUNAL HELD THAT THE TRANS ACTIONS CANNOT BE BRUSHED ASIDE ON SUSPICION AND SURMISES. HOWEVER IT WAS HELD THAT TH E TRANSACTIONS OF THE SHARES ARE 22 ITA NO.569/KOL/2017 SHRI GAUTAM KUMAR PINCHA A.Y.2013-14 22 GENUINE. THEREFORE WE DO NOT FIND THAT THERE IS ANY REASON TO HOLD THAT THERE IS NO SUBSTANTIAL QUESTION OF LAW HELD IN THIS MATTER. HE NCE THE APPEAL BEING ITA NO.620 OF 2008 IS DISMISSED. 8.5. WE NOTE THAT THE LD. AR CITED PLETHORA OF THE CASE LAWS TO BOLSTER HIS CLAIM WHICH ARE NOT BEING REPEATED AGAIN SINCE IT HAS ALREADY B EEN INCORPORATED IN THE SUBMISSIONS OF THE LD. AR (SUPRA) AND HAVE BEEN DULY CONSIDERED BY US TO ARRIVE AT OUR CONCLUSION. THE LD. DR COULD NOT BRING TO OUR NOTICE ANY CASE LAWS TO SUPPORT THE IMPUGNED DECISION OF THE LD. CIT(A)/AO. IN THE AFORESAID FACTS AND CIRCU MSTANCES OF THE CASE, WE HOLD THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDIT ION OF SALE PROCEEDS OF THE SHARES AS UNDISCLOSED INCOME OF THE ASSESSEE U/S 68 OF THE AC T. WE, THEREFORE, DIRECT THE AO TO DELETE THE ADDITION. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 15 TH NOVEMBER, 2017 SD/- SD/- (DR. A. L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :15 TH NOVEMBER, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT SHRI GAUTAM KUMAR PINCHA, ROOM NO.604, SIXTH FLOOR, 19, SYNAGOGUE STREET, KOLKATA-700001. 2 RESPONDENT ITO, WARD-34(4), KOLKATA 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, SR. PVT. SECY.,