MR. ANEESH KUMAR LALWANI, CHENNAI V. ITO NON CORPORATE WARD 9 (1), CHENNAI

ITA 660/CHNY/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7231 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 22-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AR V SREENIVASANJCITD R
• Assessee Lawyers: D ANAND
• Keywords: Opportunity of being heard; Principle of natural justice; Accommodation entries
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI , , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER & S HRI S.JAYARAMAN , ACCOUNTANT MEMBER ./ I.T.A.NO.659/CHNY/2018 / ASSESSMENT YEAR : 2014-15 MR.SUNIL KUMAR LALWANI , 10,SUBBIAH NAIDU STREET, NEW EWART SCHOOL,VEPERY, CHENNAI 600 007. VS. INCOME TAX OFFICER, NON-CORPORATE WARD-9(4), CHENNAI-34. [PAN ATEPS 0067 J ] ( / APPELLANT) ( /RESPONDENT) ./ I.T.A.NO.660/CHNY/2018 / ASSESSMENT YEAR : 2014-15 MR.AASHESH KUMAR LALWANI , 10,SUBBIAH NAIDU STREET, NEW EWART SCHOOL,VEPERY, CHENNAI 600 007. VS. INCOME TAX OFFICER, NON-CORPORATE WARD-9(4), CHENNAI-34. [PAN ACLPL 9914 H ] ( / APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR.D.ANAND,ADVOCATE !' /RESPONDENT BY : MR.AR.V.SREENIVASAN,JCIT,D.R # $ %& / DATE OF HEARING : 09 - 01 - 201 9 '( %& / DATE OF PRONOUNCEMENT : 09 - 01 - 201 9 ITA NOS.659 & 660/CHNY/2018 :- 2 -: ! / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER THESE TWO APPEALS ARE FILED BY THE DIFFERENT ASSE SSEES AGAINST THE SEPARATE ORDER OF THE COMMISSIONER OF I NCOME-TAX (APPEALS)-10, CHENNAI IN ITA NO.178/16-17/CIT(A)-10 DATED 30.01.2018 FOR THE ASSESSMENT YEAR 2014-15 IN RESPE CT OF SHRI SUNIL KUMAR LALWANI AND IN ITA NO.179/16-17/CIT(A)-10 D ATED 22.12.2017 FOR THE ASSESSMENT YEAR 2014-15 IN RESPECT OF SHRI AASHESH KUMAR LALWANI. SINCE THE ISSUES RAISED IN THESE TWO AP PLES ARE INTERLINKED, THESE TWO APPEALS ARE DISPOSED OF BY THIS COMMON OR DER. 2. MR.D.ANAND REPRESENTED ON BEHALF OF THE ASSESSEE, AND MR.AR.V.SREENIVASAN REPRESENTED ON BEHALF OF THE REVENUE. 3. IT WAS SUBMITTED BY LD.A.R THAT THE ISSUE IN BO TH THE APPEALS ARE AGAINST THE ACTION OF LD.CIT(A) IN CONFIRMING T HE DISALLOWANCE OF EXEMPTIONS CLAIMED U/S.10(38) OF THE ACT. THE LD.A. R PLACED BEFORE US THE WRITTEN SUBMISSIONS IN THESE APPEALS AS FOLLOWS :- 1. OFF MARKET PURCHASE OF SHARES IS NOT ILLEGAL. T HE SAID PROPOSITION IS AFFIRMED BY THE HONBLE MUMBAI HIGH COURT IN THE CASE OF SHRI.MUKESH RATILAL MAROLIA. (COPY ATTA CHED) 2. THE TRANSACTION OF PURCHASE WAS OFF MARKET AND T HROUGH PROPER BANKING CHANNELS WHILE THE SALE TRANSACTION WAS ONLY ITA NOS.659 & 660/CHNY/2018 :- 3 -: THROUGH ONLINE MEDIUM OF STOCK EXCHANGE AND PAYMENT S WERE MADE ONLY THROUGH ACCOUNT PAYEE CHEQUES AND REFLECT ED IN THE BOOKS OF ACCOUNTS. 3. ALTHOUGH VARIOUS INVESTIGATIONS WERE CARRIED OUT BY DIFFERENT AGENCIES, THERE IS NO EVIDENCE AGAINST THE ASSESSEE TO HOLD THAT THE ASSESSEE WAS A BENEFICIARY TO THE MODUS OP ERANDI ADOPTED BY DIFFERENT ENTITIES/ BROKERS / ENTRY OPER ATORS. 4. NO EVIDENCE WAS SUBMITTED BY THE AO TO PROVE THA T THERE IS ANY ALLEGATION IN ORDERS OF SEBI AND/OR THE ENQUIRY REPORT OF THE INVESTIGATION WING TO THE EFFECT THAT THE ASSES SEE AND/OR HIS BROKER WAS A PARTY TO THE PRICE RIGGING OR MANI PULATION OF PRICE IN BSE. 5. THAT THERE IS NO DIRECT EVIDENCE AGAINST THE ASS ESSEE BROUGHT ON RECORD BY ID AO TO HOLD THAT THE ASSESSE E INTRODUCED ITS OWN UNACCOUNTED MONEY BY WAY OF BOGU S LTCG. IN THE ABSENCE OF THE SAME DISALLOWANCE CANNOT BE M ADE AS AGAINST THE ASSESSEE. ASSESSEE PLACES RELIANCE ON T HE JUDGMENT OF THE DELHI HIGH COURT IN THE CASE OF PCI T VS LAIXMAN INDUSTRIAL RESOURCES (COPY ATTACHED) 6. THE ASSESSEE WAS A REGISTERED SHARE HOLDER OF TH E COMPANY WHICH REMAINS UNDISPUTED BY THE DEPARTMENT. THEREFO RE THE GENUINITY OF THE HOLDING CANNOT BE DISPUTED. 7. THE PERIOD OF HOLDING OF THE SAID SHARES AND THE FACT THAT THE ASSESSEE HAD SOLD THE SHARES AFTER HOLDING THE SAME FOR A PERIOD EXCEEDING 12 MONTHS WOULD ITSELF VINDICATE T HE STAND THAT THE TRANSACTION WAS GENUINE. 8. THE ASSESSEE HAS FURNISHED ALL EVIDENCES IN SUPP ORT OF THE CLAIM THAT IT EARNED LTCG ON TRANSACTIONS OF HIS IN VESTMENT IN SHARES. THE PURCHASE OF SHARES HAD BEEN ACCEPTED BY THE DEPARTMENT IN THE EARLIER YEARS. ITA NOS.659 & 660/CHNY/2018 :- 4 -: 9. THE PURCHASE OF SHARES AND THE SALE OF SHARES WE RE ALSO REFLECTED IN DEMAT ACCOUNT STATEMENTS. THE SALE OF SHARES SUFFERED STT, BROKERAGE ETC. IN THE FACTS AND CIRCU MSTANCES OF THE CASE, IT CANNOT BE HELD THAT THE TRANSACTIONS W ERE BOGUS. 10. THE ASSESSEE HAS FURNISHED ALL EVIDENCES IN SUP PORT OF THE GENUINENESS OF THE TRANSACTIONS, THE ONUS TO DISPRO VE THE SAME IS ON REVENUE AND IT IS NOT ENOUGH FOR THE REV ENUE TO SHOW CIRCUMSTANCES WHICH MIGHT CREATE SUSPICION BEC AUSE ASSESSMENTS CANNOT BE MADE ON THE BASIS OF SUSPICIO N. 11. THE AC WAS NOT JUSTIFIED IN TAKING AN ADVERSE V IEW AGAINST THE ASSESSEE ON THE GROUND OF ABNORMAL PRICE RISE O F THE SHARES AND PRICE RIGGING. THERE IS NO ALLEGATION SU BMITTED BY THE AO TO PROVE THAT THERE IS ANY ALLEGATION IN ORD ERS OF SEBI AND/OR THE ENQUIRY REPORT OF THE INVESTIGATION WING TO THE EFFECT THAT THE ASSESSEE AND/OR HIS BROKER WAS A PA RTY TO THE PRICE RIGGING OR MANIPULATION OF PRICE IN BSE. 12. THE ID AO WAS NOT JUSTIFIED IN DISALLOWING THE ASSESSEES CLAIM OF EXEMPTION UNDER SECTION 10(38) OF THE ACT BY CONCLUDING THAT THE TRANSACTIONS OF THE ASSESSEE RE SULTING IN LTCG ON SALE OF SHARES OF M/S WERE BOGUS BY MERELY RELYING ON A GENERAL INVESTIGATION CARRIED ON BY THE INVESTIGA TION WING WHEREIN THESE PERSONS ACCEPTED TO HAVE PROVIDED ACCOMMODATION ENTRIES OF VARIOUS NATURES INCLUDING LTCG TO DIFFERENT PERSONS OTHER THAN THE ASSESSEE. ASSESSEE PLACES RELIANCE ON THE JUDGMENT OF THE DELHI HIGH COURT IN THE CASE OF PCIT VS LAXMAN INDUSTRIAL RESOURCES (COPY ATTACHED) 13. THE ASSESSEE FURTHER RELIES ON THE JUDGMENT OF THE APEX COURT IN THE CASE OF TEJUA ROHITKUMAR KAPADIA IN SU PPORT OF THE SUBMISSION THAT NO ADDITION CAN BE MADE UNDE R SECTION 68 WHEN THE PERSON THROUGH WHOM THE SHARES WERE PUR CHASED ARE IDENTIFIABLE AND THE TRANSACTION OF SALE OF SHA RES AND ITS GENUINESS CANNOT BE DISPUTED IN THE LIGHT OF THE FA CT THAT THE ITA NOS.659 & 660/CHNY/2018 :- 5 -: SALE OF SHARES WERE THROUGH ONLINE MEDIUM AND BY PA YMENT OF STT. THE ASSESSEE HAVING SATISFIED ALL THREE CONDIT IONS OF IDENTIFYING THE SELLER, GENUINENESS OF THE TRANSACT ION AND CREDITWORTHINESS SINCE THE SAME IS COVERED BY PAYME NT OF STT AND CONTRACT NOTE, THE ONUS IS ON THE DEPARTMENT TO PROVE THE TRANSACTION OTHERWISE NOT BY USING ANY GENERALISED ENQUIRY BUT ON THE BASIS OF SPECIFIC INSTANCE OF THE ASSESSEE. 14. IF THE LEARNED ASSESSING OFFICER IS RELYING ON ANY STATEMENT OBTAINED FROM ANY PERSON WHICH IS USED AGAINST THE ASSESSE THAN PRINCIPLE OF NATURAL JUSTICE DEMANDS THAT THE ASSESSE SHOULD BE PROVIDED WITH THE COPY OF THE SAME AND AL SO SHOULD BE PROVIDED OPPORTUNITY FROM CROSS EXAMINATION AS H ELD BY THE APEX COURT IN THE CASE OF ANDAMAN TIMBERS. (COPY AT TACHED). IT WAS THE PRAYER THAT THE CLAIM OF EXEMPTION U/S.1 0(38) OF THE ACT ON THE LONG TERM CAPITAL GAINS ON SALE OF SHARES MAY B E ALLOWED. 4. IN REPLY, IT WAS SUBMITTED BY LD.D.R THAT THE I SSUE WAS NOW SQUARELY COVERED BY THE DECISION OF CO-ORDINATE BEN CH OF THIS TRIBUNAL IN THE CASE OF SHRI HEERACHAND KANUNGA FOR ASSESSME NT YEARS 2010-11 & 2011-12 IN ITA NOS.2786 & 2787/MDS/2017 VIDE ORD ER DATED 03.05.2018 WHEREIN THE TRIBUNAL HAS BEEN HELD AS FO LLOWS:- 9. A PERUSAL OF THE FACTS IN THE PRESENT CASE ADM ITTEDLY GIVEN ROOM FOR SUSPICION. HOWEVER, ASSESSMENTS ARE NOT TO BE DONE ON THE BASIS OF MERE SUSPICION. IT HAS TO BE SUPPORTED BY FACTS AND THE FACTS ARE UNFORTUNATELY NOT FORTHCOMING IN THE ASSESSMENT ORD ER, IN THE ORDER OF THE LD.CIT(A) NOR FROM THE SIDE OF THE ASSESSEE. T HE MAIN FOUNDATION OF THE ASSESSMENT IN THE PRESENT CASE IS THE STATEM ENT OF ONE SHRI ITA NOS.659 & 660/CHNY/2018 :- 6 -: ASHOK KUMAR KAYAN WHO HAS ADMITTED TO HAVE PROVIDED BOGUS LONG TERM CAPITAL GAINS TO HIS CLIENTS. THE SAID SHRI A SHOK KUMAR KAYAN ALSO ALLEGEDLY SEEMS TO HAVE PROVIDED THE ASSESSEES NAM E AND PAN AS ONE OF THE BENEFICIARIES. HOWEVER, THIS STATEMENT GIVE N BY SHRI ASHOK KUMAR KAYAN CANNOT BE THE FOUNDATION FOR THE PURPOS E OF ASSESSMENT IN SO FAR AS SHRI ASHOK KUMAR KAYAN HAS NOT BEEN PROVI DED TO THE ASSESSEE FOR CROSS-EXAMINATION. IN THE ABSENCE OF OPPORTUNITY OF CROSS- EXAMINATION, THE STATEMENT REMAINS MERE INFORMATION AND SUCH INFORMATION CANNOT BE FOUNDATION FOR ASSESSMENT. 10. ADMITTEDLY, THE ASSESSEE HAS CLAIMED TO HAVE PU RCHASED 15000 SHARES FROM M/S.BPL @ RS.20/- PER SHARE TOTALING IN TO RS.3,00,000/-. THE ASSESSEE CLAIMS TO HAVE PAID CASH FOR THE PURCH ASE OF THESE SHARES. THE PRIMARY QUESTION WOULD BE AS TO WHERE THE PURCH ASE WAS DONE? IF THE PURCHASE HAS BEEN DONE IN KOLKATA, HOW WAS THE CASH TRANSFERRED? WHEN DID THE ASSESSEE RECEIVED THE SHARE CERTIFICAT ES AND THE SHARE TRANSFER FORMS? HOW DID THE ASSESSEE OVERCOME THE PROVISIONS OF SEC.40A(3)? WAS THERE ADEQUATE CASH AVAILABILITY I N THE BOOKS OF THE ASSESSEE ON 24.04.2008? DID THE ASSESSEE TRAVELLED TO KOLKATA? HOW WAS THE TRANSACTION DONE? WHO APPLIED FOR THE DEMA TING OF THE SHARES? WHEN WERE THEY DEMATED? WHEN WERE THE SHARES TRANS FERRED TO THE DEMAT ACCOUNT OF THE ASSESSEE? TO WHOM WERE THE SHA RES SOLD DURING THE ASSESSMENT YEARS 2010-11 & 2011-12? WHEN WERE THE CHEQUES RECEIVED BY THE ASSESSEE? FROM WHOM DID THE ASSESS EE RECEIVED THE CHEQUES? WAS THERE ANY CASH DEPOSIT IMMEDIATELY PRI OR TO THE ISSUING OF THE CHEQUE FROM THE BANK ACCOUNT OF THE PURCHASER O F THE SHARES OF THE ASSESSEE? 11. A PERUSAL OF THE ASSESSMENT ORDER AT PARA NO.7. 1 SHOWS THAT IN THE WRITTEN SUBMISSIONS, THE ASSESSEE STATES THAT H E HAS PURCHASED 15000 SHARES OF M/S.BPL FROM M/S.ABPL, KOLKATA. HO WEVER, IN PARA NO.8.3, IT IS MENTIONED THAT THE ASSESSEE IN GOOD F AITH HAS PURCHASED THE SHARES OF M/S.BPL FROM A SUB-BROKER IN HIS FRIE NDS CIRCLE. WHAT IS THE TRUE NATURE OF THE TRANSACTION? FROM WHOM DID T HE ASSESSEE ACTUALLY ITA NOS.659 & 660/CHNY/2018 :- 7 -: PURCHASE THE SHARES? DID THE ASSESSEE TAKE POSSESS ION OF THE SHARES IN ITS PHYSICAL FORM? IN PARA NO.8.1 OF THE ASSESSMEN T ORDER, IT IS MENTIONED THAT THE ASSESSEE IS AN INVESTOR AND HAS BEEN REGULARLY TRADING IN SHARES. IF THIS IS SO, DOES THE DEMAT A CCOUNT SHOW SUCH TRANSACTIONS BEING DONE BY THE ASSESSEE OR IS THIS THE ONLY ONE OF TRANSACTION. THUS, CLEARLY THE FACTS REQUIRED FOR ADJUDICATING THE APPEALS ARE NOT FORTHCOMING. THERE IS NO EVIDENCE WHATSOEV ER TO SHOW THAT THE ASSESSEE HAS HELD THE SHARES FOR MORE THAN 12 MONTH S. THIS IS BECAUSE ASSUMING THAT THE DEMAT HAS BEEN DONE AND THE SHARE S OF M/S.BPL HAS COME INTO THE ASSESSEES DEMAT ACCOUNT AND HAS IMME DIATELY FLOWN OUT. THEN THE FACTUM OF THE POSSESSION OF THE SHARES FOR MORE THAN 12 MONTHS HAVE TO BE PROVED BY THE ASSESSEE. THIS IS ALSO NOT FORTHCOMING. IN REPLY TO A SPECIFIC QUERY, AS THE DATE OF THE DEMAT OF SHARES, IT WAS SUBMITTED BY THE LD.AR THAT THE DEMA T WAS DONE ON VARIOUS DATES. THEN THE QUESTION RISES AS TO WHY T HERE IS SO MUCH OF DIFFERENCE IN THE DATES OF DEMATING WHEN 15000 SHAR ES HAVE BEEN PURCHASED TOGETHER ON 24.04.2008. NO DETAILS IN RE SPECT OF M/S.BPL COMPANY IS KNOWN, WHAT IS THE PRODUCT OF THE COMPAN Y WHICH HAD LEAD TO THE SHARE VALUE OF THE COMPANY TO GO UP FROM RS. 20/- TO RS.352/- IN A PERIOD OF TWO YEARS. THIS WOULD CLEARLY BE A CASE WHERE THE SHARE VALUE OF THE COMPANY WAS HITTING THE CIRCUIT BREAKE R OF THE STOCK EXCHANGE ON A DAILY BASIS AND OBVIOUSLY IT WOULD HA VE DRAWN ATTENTION. THIS BEING SO, AS THE FACTS ARE NOT COMING OUT OF T HE ASSESSMENT ORDER NOR THE ORDER OF THE LD.CIT(A) NOR FROM THE SIDE OF THE ASSESSEE, WE ARE OF THE VIEW THAT THE ISSUES IN THIS APPEAL MUST BE RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION AFTER GRANTING THE ASSES SEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE ITS CASE AND WE DO SO. 12.THE STATEMENT RECORDED BY THE REVENUE FROM SHRI ASHOK KUMAR KAYAN CANNOT BE USED AS AN EVIDENCE AGAINST THE ASS ESSEE IN SO FAR AS THE STATEMENT HAS NOT BEEN GIVEN TO THE ASSESSEE NO R HAS SHRI ASHOK KUMAR KAYAN BEEN PROVIDED TO THE ASSESSEE FOR CROSS -EXAMINATION. HOWEVER, THE ASSESSEE SHALL PROVE THE TRANSACTION O F THE LONG TERM ITA NOS.659 & 660/CHNY/2018 :- 8 -: CAPITAL GAINS IN RESPECT OF WHICH THE ASSESSEE HAS CLAIMED THE EXEMPTION U/S.10(38) BY PROVIDING ALL SUCH EVIDENCE S AS REQUIRED BY THE AO TO SUBSTANTIATE THE CLAIM AS ALSO BY PRODUCING T HE PERSONS THROUGH WHOM THE ASSESSEE HAS UNDERTAKEN THE TRANSACTION OF THE PURCHASE AND SALE OF THE SHARES WHICH WOULD INCLUDE THE SUB-BROK ER, FRIEND AND THE BROKER THROUGH WHOM THE TRANSACTION HAS BEEN DONE, BEFORE THE AO FOR EXAMINATION. IT WAS A SUBMISSION THAT ON IDENTICAL DIRECTIONS, T HE ISSUE IN THESE APPEALS CAN ALSO BE RESTORED TO THE FILE OF LD. ASS ESSING OFFICER. 5. PER CONTRA, LD.A.R SUBMITTED THAT THE HONBLE D ELHI HIGH COURT IN THE CASE OF PR.CIT VS. M/S.LAXMAN INDUSTRIAL RESOUR CES LTD., IN ITA NO.169/2017, C.M.APPL.7385/2017 VIDE ORDER DATED 14 .03.2017 HAS HELD THE ISSUE IN FAVOUR OF THE ASSESSEE. THE LD.A. R ALSO PLACED BEFORE US THE DECISION OF THE CO-ORDINATE BENCH OF THIS TR IBUNAL IN THE CASE OF SHRI ARAVIND NANDLAL KHATRI VS. INCOME TAX OFFICER, IN ITA NO.2035/CHNY/2038 FOR ASSESSMENT YEAR 2011-12 VIDE ORDER DATED 03.12.2018 WHEREIN THE CO-ORDINATE BENCH OF THIS TR IBUNAL HAS HELD AS FOLLOWS:- 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE A.O RECEIVED INFORMATION FROM INVESTIGATION WING OF THE DEPARTMENT AT KOLKATA WITH REGARD TO INVESTMENT OF THE ASSESSE E IN PENNY STOCK COMPANY, NAMELY, M/S.CONCRETE CREDIT LIMITED. THE A SSESSEE ALSO ADMITTEDLY SOLD THE SAID SHARES AND CLAIMED EXEMPTI ON UNDER SECTION 10(38) OF THE ACT DURING THE YEAR WIDER CON SIDERATION. ITA NOS.659 & 660/CHNY/2018 :- 9 -: THEREFORE, THE ASSESSING OFFICER HAS NOT DISPUTED T HE SOURCE FOR INVESTMENT. THE ASSESSING OFFICER DISALLOWED THE CL AIM OF EXEMPTION ON THE GROUND THAT THE INVESTMENT WAS IN A PENNY ST OCK COMPANY. FROM THE MATERIAL AVAILABLE ON RECORD IT APPEARS TH AT A COPY OF INFORMATION SAID TO BE RECEIVED FROM THE INVESTIGAT ION WING OF THE DEPARTMENT AT KOLKATA WAS NOT FURNISHED TO THE ASSE SSEE. IT IS NOT BROUGHT ON RECORD THE RELATIONSHIP OF THE ASSESSEE WITH THE PROMOTERS OF M/S CONCRETE CREDIT LIMITED. IT IS ALS O NOT BROUGHT ON RECORD THE ROLE OF THE ASSESSEE IN PROMOTING THE CO MPANY, NAMELY, M/S CONCRETE CREDIT LIMITED, ISSUE OF PUBLIC SHARES , INFLATION OF PRICE OF SHARES, ETC. IN THOSE CIRCUMSTANCES, THIS TRIBUN AL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE-E XAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTE D BACK TO THE FILE OF THE ASSESSING OFFICER. THE A.O SHALL BRING ON RE CORD THE ROLE OF THE ASSESSEE IN PROMOTING THE COMPANY AND RELATIONS HIP OF THE ASSESSEE WITH OTHER PROMOTERS, ROLE OF THE ASSESSEE IN INFLATING THE PRICE OF SHARES, ETC. THE ASSESSING OFFICER SHALL ALSO FURNISH A COPY OF THE REPORT SAID TO BE RECEIVED FROM THE INVESTIG ATION WING OF THE DEPARTMENT AT KOLKATA TO THE ASSESSEE AND THEREAFTE R DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. RESP ECTFULLY FOLLOWING THE ABOVE DECISIONS OF THE CO-ORDINATE BE NCH OF THIS TRIBUNAL, THE ISSUE IS RESTORED TO THE FILE OF LD. ASSESSING OFFICER FOR RE-ADJUDICATION ON IDENTICAL DIRECTIONS AS GIVEN IN THE CASE OF HEERACHAND KANUNGA REFERRED TO SUPRA. THE LD. ASSE SSING OFFICER SHALL ALSO BRING ON RECORD THE ROLE OF THE ASSESSEE IN PROMOTING THE ITA NOS.659 & 660/CHNY/2018 :- 10 - : COMPANY AND RELATIONSHIP OF THE ASSESSEE WITH OTHER PROMOTERS, ROLE OF THE ASSESSEE IN INFLATING THE PRICE OF SHARES, ETC. AS HAD BEEN HELD BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SHRI ARAVIND NANDLAL KHATRI VS. I.T.O REFERRED TO SUPRA. THE LD. ASSESSING OFFICER SHALL KEEP IN MIND THE DIRECTIONS OF THE HONBLE DE LHI HIGH COURT IN THE CASE OF PR.CIT VS. M/S.LAXMAN INDUSTRIAL RESOURCES LTD., REFERRED TO SUPRA WHEN RE-ADJUDICATING THE ISSUE. THE ISSUES IN BOTH THE APPEALS OF ASSESSEES MENTIONED IN THE TITLE ARE RESTORED TO THE FILE OF LD. ASSESSING OFFICER FOR RE-ADJUDICATION AFTER GRANTIN G THE ASSESSEES ADEQUATE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE IN THE CASE OF MR.SUNIL KUMAR LALWANI AND MR.AASHESH KUMAR LALWAN I ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSION OF HEARING ON 09 TH JANUARY, 2019, AT CHENNAI. SD/ - SD/ - ( ) (S. JAYARAMAN) ' # /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) $ # / JUDICIAL MEMBER ) $ / CHENNAI * / DATED: 09 TH JANUARY, 2019. K S SUNDARAM + !%,- . -% / COPY TO: 1 . / APPELLANT 4. # /% / CIT 2. !' / RESPONDENT 5. -01 !%2 / DR 3. # /% () / CIT(A) 6. 15 6$ / GF