Appeal Details
Counselvise Citation
[2020] 111 COUNSELVISE.COM (IT) 9301 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
4 month(s) 28 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
10-01-2020
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
A
Assessment Year
2015-2016
Appeal Filed On
13-08-2019
Judgement Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI A BEN CH, NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 6703/DEL/2019 [ASSESSMENT YEAR: 2015-16] SHRI ANOOP JAIN, VS. THE A.C.I.T 11, PARAMATMA HOUSE, BABAR LANE CENTRAL CIRCLE -53(1) BENGALI MARKET, NEW DELHI NEW DELHI PAN: AADPJ 2136 K [APPELLANT] [RESPONDENT] DATE OF HEARING : 08.01.2020 DATE OF PRONOUNCEMENT : 10.01.2020 ASSESSEE BY : SHRI S.K. TULSIAN, ADV MS. BHOOMIJA VERMA, ADV REVENUE BY : SHRI VED PRAKASH MISHRA, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] - 36, NEW DELH I DATED 24.07.2019 PERTAINING TO ASSESSMENT YEAR 2015-16. 2 2. THE GRIEVANCE OF THE ASSESSEE RELATES TO THE ADD ITION MADE U/S 68 OF THE INCOME TAX ACT, 1961 [HEREINAFTE R REFERRED TO AS 'THE ACT' FOR SHORT] BY TREATING THE LONG TERM CAPITAL GAIN AS NOT GENUINE AMOUNTING TO RS. 5,70,9 1,750/- AND IS FURTHER AGGRIEVED BY THE ADDITION OF RS. 11, 41,835/- BEING 2% OF THE ALLEGED BOGUS LONG TERM CAPITAL GAI N. 3. THE REPRESENTATIVES OF BOTH THE SIDES WERE HEARD AT LENGTH, THE CASE RECORDS CAREFULLY PERUSED AND WITH THE ASSISTA NCE OF THE LD. COUNSEL, WE HAVE CONSIDERED THE DOCUMENTARY EVIDENC ES BROUGHT ON RECORD IN THE FORM OF PAPER BOOK IN LIGHT OF RULE 1 8(6) OF ITAT RULES AND HAVE ALSO PERUSED THE JUDICIAL DECISIONS RELIED UPON BY BOTH THE SIDES. 4. FACTS EMANATING FROM THE ASSESSMENT ORDER SHOW T HAT THE ASSESSEE E-FILED HIS RETURN OF INCOME ON 30.08. 2015 DECLARING AN INCOME OF RS. 44,40,350/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT. SUBSEQUENTLY, RET URN WAS SELECTED FOR SCRUTINY ASSESSMENT AND, ACCORDINGLY, STATUTORY NOTICES WERE ISSUED AND SERVED UPON THE ASSESSEE. 3 5. THE MAIN REASON FOR SELECTING THE RETURN FOR COM PLETE SCRUTINY WAS IN RESPECT OF THE ALLEGED SUSPICIOUS S ALE TRANSACTIONS IN SHARES OF LIFELINE DRUGS AND PHARMA LTD [LDPL], WHICH GENERATED EXEMPTED LONG TERM CAPITAL GAINS TO THE ASSESSEE. 6. THE ASSESSEE PURCHASED 5000 SHARES OF RS. 100 EA CH OF LDPL. THE ASSESSEE HAD PURCHASED 2 LAKH EQUITY SHA RES OF KADAM CONSTRUCTION LIMITED THROUGH A REGISTERED BRO KER M/S GLOBE CAPITAL, WHICH WERE SUBSEQUENTLY SOLD @ RS. 2 2 PER SHARE TO M/S SALKAT TRADELINK PVT LTD FOR A TOTAL CONSIDERATION OF RS. 44 LAKHS. PURCHASE CONSIDERAT ION OF RS. 5 LAKHS, BEING 5000 SHARES OF LDPL @ RS. 100/-, WAS ADJUSTED FROM THE SALE CONSIDERATION OF SHARES OF KADAM CONS TRUCTION LTD. SUBSEQUENTLY, 5000 SHARE OF LDPL WERE SPLIT I NTO 2,50,500 SHARES AND OUT OF WHICH, THE ASSESSEE SOLD 2,20,000 SHARES FOR RS. 5,70,91,750/-. 7. SUPPORTING DOCUMENTARY EVIDENCES WERE FURNISHED DURING THE ASSESSMENT PROCEEDINGS ITSELF. THE ASSE SSING OFFICER DISBELIEVED THE TRANSACTION OF SALE OF SHAR ES OF LDPL 4 AND WAS OF THE FIRM BELIEF THAT THE STEEP RISE IN S HARE PRICE WAS JACKED UP BY A CARTEL OF BROKERS TO ALLOW BENEF IT OF LONG TERM CAPITAL GAINS TO VARIOUS PERSONS. 8. HEAVILY DRAWING SUPPORT FROM THE REPORT OF THE INVESTIGATION WING, KOLKATA, THE ASSESSING OFFICER FORMED A BELIEF THAT THE LONG TERM CAPITAL GAIN EARNED BY TH E ASSESSEE THROUGH ENTRY PROVIDERS IS NOT GENUINE AND THE ASSE SSEE HAS DELIBERATELY GOT INVOLVED IN THIS PROCESS, IN ORDER TO BOOK HIS UNACCOUNTED INCOME IN HIS BOOKS OF ACCOUNT, WITHOUT PAYING ANY TAXES. THE ASSESSING OFFICER OBSERVED THAT STE EP RISE IN SHARE PRICE OF LDPL HAS NO REASON AS THE COMPANY HA S NO PROFITS AND NO SIGNIFICANT BUSINESS ACTIVITY. 9. THE ASSESSING OFFICER FURTHER OBSERVED THAT THER E WAS NO REASON WHY THERE SHOULD HAVE BEEN SPLITTING OF SHAR ES. THE ASSESSING OFFICER THEREBY REFERRED TO THE GENERAL OBSERVATIONS IN RESPECT OF ENTRY PROVIDERS AND THEI R MODUS OPERANDI AND CAME TO THE CONCLUSION THAT THE RISE I N SHARE PRICE WAS UNREASONABLE, MODE OF ACQUISITION OF SHAR ES WAS QUESTIONABLE AND FINDINGS OF THE INV- WING, KOLKATA PROVED 5 THAT THE ASSOCIATED BROKERS/ENTRY OPERATORS AND BEN EFICIARIES HAD WORKED OUT AN ARRANGEMENT, IN WHICH SHARES WERE ACQUIRED BY THE ASSESSEE, THEIR SHARE PRICES WERE R IGGED AND THEN WITH THE HELP OF ENTRY OPERATORS, ROUTING CASH , SHARES WERE SOLD AT HIGH PRICE TO ARRIVE AT TAX FREE CAPIT AL GAINS. 10. AFTER REFERRING TO THE GENERAL OBSERVATIONS AND INVESTIGATION REPORT AND THE MODUS OPERANDI OF THE ENTRY OPERATORS, THE ASSESSING OFFICER CAME TO THE CONCLU SION THAT THE ASSESSEE HAS FAILED TO DISCHARGE HIS ONUS CAST UPON HIM BY PROVISIONS OF SECTION 68 OF THE ACT AND MADE ADD ITION OF RS. 5,70,91,750/-. 11. THE ASSESSING OFFICER FURTHER OBSERVED THAT THE BENEFICIARIES OF SUCH TRANSACTIONS PAY SOME COMMISS ION TO THE ENTRY PROVIDERS AND ASSUMING THAT THE ASSESSEE MUST HAVE PAID 2% COMMISSION, MADE FURTHER ADDITION OF RS. 11 ,41,835/. 12. THE ASSESSEE STRONGLY AGITATED THE MATTER BEFOR E THE LD. CIT(A) BUT WITHOUT ANY SUCCESS. 6 13. AT THE VERY OUTSET, WE HAVE TO STATE THAT WHETH ER THE ASSESSEE HAS DISCHARGED HIS ONUS CAST UPON HIM BY PROVISIONS OF SECTION 68 OF THE ACT OR NOT IS PURELY A QUESTION OF FACTS. ON THIS PREMISE, WE WILL NOW EXAMINE AND EXPLAIN THE FACTS. 14. THE UNDISPUTED FACT IS THAT THE ASSESSEE IS A H ABITUAL INVESTOR. IN F.Y. 2011-12, THE ASSESSEE HAD OPENING INVESTMENT O F RS. 29,82,55,788/- ON WHICH IN THAT YEAR, THE ASSESSEE HAD INCURRED A SHORT TERM CAPITAL LOSS OF RS. 1,37,84,938/- AND LONG TER M CAPITAL GAIN OF RS. 39,92,266/-. THE CLOSING VALUE OF THE INVESTMENT WA S RS. 41,69,34,260/-. THESE FACTS ARE AVAILABLE AT PAGES 52 TO 54 OF THE PAPER BOOK. IN F.Y. 2011-12, SHARES OF LDPL CAN BE SEEN. 15. IN F.Y. 2012-13, THE ASSESSEE HAD OPENING INVES TMENT OF RS. 41,69,34,260/- AND IN THIS YEAR, THE ASSESSEE I NCURRED SHORT TERM CAPITAL LOSS OF RS. 60,76,121/- AND LONG TERM CAPITAL GAIN OF RS. 24,61,44,677/-. THE CLOSING VA LUE OF INVESTMENT WAS RS. 44,11,15,960/-. THESE FACTS ARE AVAILABLE AT PAGES 55 TO 57 OF THE PAPER BOOK. 7 16. IN F.Y. 2013-14, THE OPENING VALUE INVESTMENT W AS RS. 44,11,15,960/- AND IN THIS YEAR, THE ASSESSEE INCUR RED SHORT TERM CAPITAL LOSS OF RS. 2,78,25,386/- AND LONG TER M CAPITAL GAIN OF RS. 5,13,30,276/-. THE CLOSING VALUE OF IN VESTMENT WAS RS. 31,35,63,539/-. THESE FACTS ARE AVAILABLE AT PAGES 58 TO 60 OF THE PAPER BOOK. 17. NOW COMING TO THE INVESTMENTS SITUATION OF THE YEAR UNDER CONSIDERATION, I.E. F.Y. 2014-15, OPENING VALUE INV ESTMENT WAS RS. 31,35,63,539/-AND DURING THE YEAR, THE ASSESSEE EARNED SHORT TERM CAPITAL GAIN OF RS. 2,50,99,612/- AND LO NG TERM CAPITAL GAIN OF RS. 8,12,67,018/-. THE CLOSING VAL UE OF INVESTMENT WAS RS. 16,28,79,904/-. THESE FACTS ARE AVAILABLE AT PAGES 61 TO 63 OF THE PAPER BOOK. 18. IT CAN BE SEEN THAT DURING THE F.Y. 2014-15, TH E ASSESSEE HAS EARNED SHORT TERM CAPITAL GAIN OF RS. 2.50 CRORES A ND LONG TERM CAPITAL GAIN OF RS. 8.12 CRORES. HOWEVER, THE ASSESSING OF FICER CHOSE ONLY ONE SCRIP OUT OF SEVERAL, AND CAME TO THE CONCLUSION TH AT THE LONG TERM CAPITAL GAIN OF RS. 5.70 CRORES IS BOGUS. HOWEVER, THE ASSESSING OFFICER 8 ACCEPTED THE TRANSACTIONS IN RESPECT OF SHORT TERM CAPITAL GAIN AND BALANCE LONG TERM CAPITAL GAIN. 19. A PERUSAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT NOWHERE THE ASSESSING OFFICER HAS MADE ANY ADVERSE COMMENT IN R ESPECT OF HABITUAL INVESTMENTS MADE BY THE ASSESSEE. ON THE CONTRARY, HE HAS ACCEPTED ALL THE TRANSACTIONS OTHER THAN THOSE OF LDPL. 20. SECTION 142(2) PROVIDES THAT FOR THE PURPOSE OF OBTAINING FULL INFORMATION IN RESPECT OF INCOME OR LOSS OF AN Y PERSON, THE ASSESSING OFFICER MAY MAKE SUCH ENQUIRY AS HE C ONSIDERS NECESSARY AND U/S 142(3) IT IS PROVIDED THAT THE AS SESSEE SHALL BE GIVEN AN OPPORTUNITY OF BEING HEARD IN RES PECT OF ANY MATERIAL GATHERED ON THE BASIS OF ANY ENQUIRY UNDER SUB SECTION (2) AND IN SECTION 143(3) OF THE ACT IT IS PROVIDED THAT AFTER HEARING SUCH EVIDENCE, AS THE ASSESSEE MAY PR ODUCE AND SUCH OTHER EVIDENCE AS THE ASSESSING OFFICER MAY RE QUIRE ON SPECIFIED POINTS AND AFTER TAKING INTO ACCOUNT ALL RELEVANT MATERIAL WHICH HE HAS GATHERED, THE ASSESSING OFFIC ER SHALL MAKE AN ASSESSMENT ON THE TOTAL INCOME OR LOSS OF T HE ASSESSEE. 9 21. A CONSPECTUS READING OF ALL THESE RELEVANT PROV ISIONS OF THE ACT SHOW THAT INITIAL BURDEN IS UPON THE ASSESSEE TO JU STIFY HIS RETURNED INCOME AND IF SOME EVIDENCES HAVE BEEN GATHERED BY THE ASSESSING OFFICER, IT IS THE DUTY OF THE ASSESSING OFFICER TO CONFRONT THOSE EVIDENCES TO THE ASSESSEE AND SEEK EXPLANATION FROM HIM. 22. IN THE INSTANT CASE, IN JUSTIFICATION OF HIS RE TURN OF INCOME, THE ASSESSEE FURNISHED ALL THE NECESSARY DOCUMENTARY EV IDENCES TO DISCHARGE THE INITIAL BURDEN CAST UPON HIM. THE AS SESSING OFFICER SIMPLY RUBBISHED ALL THE DOCUMENTARY EVIDENCES BY R EFERRING TO THE GENERAL OBSERVATIONS AND MODUS OPERANDI OF THE ENTR Y OPERATORS AND FURTHER SUPPORTING HIS OBSERVATIONS BY REPORT OF TH E INVESTIGATION WING. 23. IT WOULD NOT BE OUT OF PLACE TO MENTION HERE TH AT LDPL, NOW KNOWN AS ARIHANT MULTI COMMERCIAL LTD, IS NOT A PAP ER COMPANY NOR A SHELL COMPANY. IN F.Y. 2013-14, THE REVENUE FROM O PERATIONS WERE AT RS. 40,85,02,313/- AND TOTAL ASSETS WERE AT RS. 32, 79,07,684/- WHICH INCLUDED INVESTMENT, TRADE RECEIVABLES, CASH AND CA SH EQUIVALENT, SHORT TERM LOANS AND ADVANCES AND TANGIBLE ASSETS. THE SHARE CAPITAL AND RESERVES AND SURPLUS WERE AT RS. 3,62,40,000/- AND RS. 10 17,65,16,912/- RESPECTIVELY. TRADE PAYABLES WERE A T RS. 10,80,74,165/-. 24. THESE FINANCIALS GO TO SHOW THAT LDPL IS NOT A SHELL COMPANY. SEBI HAS SUSPENDED TRADING IN SHARES OF LDPL W.E.F 28.08.2015 WHEREAS THE ASSESSEE HAS SOLD SHARES FROM MAY 2014 TO DECEM BER 2014, MANY MONTHS BEFORE SUSPENSION OF THE SCRIP. IT IS NOT T HE CASE OF THE ASSESSING OFFICER, NOR THERE IS ANY EVIDENCE ON REC ORD TO SHOW THAT SEBI HAS DECLARED ALL TRANSACTIONS DONE IN SCRIP OF LDPL PRIOR TO THE SUSPENSION AS NULL AND VOID. IT IS A MATTER OF FAC T THAT SEBI LOOKS INTO IRREGULAR MOVEMENTS IN SHARE PRICES AND WARNS INVES TORS AGAINST ANY SUCH UNUSUAL INCREASE IN SHARE PRICE. NO SUCH WARN ING WAS ISSUED BY SEBI. THE ASSESSING OFFICER HAS FAILED TO PRODUCE A NY MATERIAL/EVIDENCE TO DISLODGE OR CONTROVERT THE GEN UINENESS OF CONCLUSIVE DOCUMENTARY EVIDENCES PRODUCED BY THE AS SESSEE IN SUPPORT OF HIS CLAIM CONSIDERING THE FACT THAT HE IS A GENU INE INVESTOR AND IS FROM PAST MANY YEARS, AS EXPLAINED ELSEWHERE. 25. SURPRISINGLY, NEITHER THE ASSESSEE NOR HIS BROK ERS ARE NAMED AS ILLEGITIMATE BENEFICIARIES TO BOGUS LONG TERM CAPIT AL GAIN IN ANY OF THE ALLEGED STATEMENTS OF THE OPERATORS/BROKER OR REPOR TS/ORDERS OF THE SEBI OR THE INVESTIGATION WING. IN OUR CONSIDERED VIEW, ADDITIONS MADE 11 BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. C IT(A) ARE HEAVILY GUIDED BY SURMISES, CONJECTURES AND PRESUMPTIONS AN D, THEREFORE, HAVE NO LEGS TO STAND ON. 26. IT WOULD NOT BE OUT OF PLACE TO REFER TO THE DE CISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ADAMINE CONSTR UCTION PVT LTD 99 TAXMANN 45 WHEREIN THE HON'BLE SUPREME COURT, WHILE DISMISSING THE APPEAL, MADE THE FOLLOWING OBSERVATIONS: WHAT IS EVIDENT IS THAT THE AO WENT BY ONLY THE RE PORT RECEIVED AND DID NOT MAKE THE NECESSARY FURTHER ENQ UIRIES - SUCH AS INTO THE BANK ACCOUNTS OR OTHER PARTICULARS AVAILABLE WITH HIM BUT RATHER RECEIVED THE ENTIRE FINDINGS ON THE REPORT, WHICH CANNOT BE CONSIDERED AS PRIMARY MATERIAL. THE ASSESSEE HAD DISCHARGED THE ONUS INITIALLY CAST UPON IT BY P ROVIDING THE BASIC DETAILS WHICH WERE NOT SUITABLY ENQUIRED INTO BY THE AO. THE ASSESSEE HAD DISCHARGED THE ONUS INITIALLY CAST UPON IT BY PROVIDING THE BASIC DETAILS WHICH WERE NOT SUITABLY ENQUIRED INTO BY THE AO. 12 27. IN THE CASE OF ODEON BUILDERS PVT LTD 110 TAXMA NN.COM 64, THE HON'BLE SUPREME COURT WHILE DISMISSING THE REVIEW P ETITION, HELD AS UNDER: HOWEVER, ON GOING THROUGH THE JUDGMENTS OF THE CIT , ITAT AND THE HIGH COURT, WE FIND THAT ON MERITS A DISALLOWAN CE OF RS.19,39,60,866/- WAS BASED SOLELY ON THIRD PARTY I NFORMATION, WHICH WAS NOT SUBJECTED TO ANY FURTHER SCRUTINY. T HUS, THE LD. CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE STATING: THUS, THE ENTIRE DISALLOWANCE IN THIS CASE IS BASE D ON THIRD PARTY INFORMATION GATHERED BY THE INVESTIGATI ON WING OF THE DEPARTMENT, WHICH HAVE NOT BEEN INDEPENDENTLY SUBJECTED TO FURTHER VERIFICATION BY THE AO WHO HAS NOT PROVIDED THE COPY OF SUCH STATEMENTS TO THE APPELLANT, THUS DENYING OPPORTUNITY OF CROSS EXAMINATION TO THE APPELLANT, WHO HAS PRIMA FACIE DISCHARGED THE INITIAL BURDEN OF SUBSTANTIATING THE PURCHASES THROUGH VARIOUS DOCUMENTATION INCLUDING PURCHASE BILLS, TRANSPORTATION BILLS, CONFIRMED COP Y OF ACCOUNTS AND THE FACT OF PAYMENT THROUGH CHEQUES, & VAT REGISTRATION OF THE SELLERS & THEIR INCOME TAX RETU RN. IN VIEW OF THE ABOVE DISCUSSION IN TOTALITY, THE PURCH ASES MADE BY THE APPELLANT FROM M/S PADMESH REALTORS PVT . LTD. IS FOUND TO BE ACCEPTABLE AND THE CONSEQUENT 13 DISALLOWANCE RESULTING IN ADDITION TO INCOME MADE F OR RS.19,39,60,866/-, IS DIRECTED TO BE DELETED. 4. THE ITAT BY ITS JUDGMENT DATED 16TH MAY, 2014 RE LIED ON THE SELF-SAME REASONING AND DISMISSED THE APPEAL OF THE REVENUE. LIKEWISE, THE HIGH COURT BY THE IMPUGNED J UDGMENT DATED 5 TH JULY, 2017, AFFIRMED THE JUDGMENTS OF TH E CIT AND ITAT AS CONCURRENT FACTUAL FINDINGS, WHICH HAVE NOT BEEN SHOWN TO BE PERVERSE AND, THEREFORE, DISMISSED THE APPEAL STATING THAT NO SUBSTANTIAL QUESTION OF LAW ARISES FROM THE IMPU GNED ORDER OF THE ITAT. 5. IN THESE CIRCUMSTANCES, THE REVIEW PETITIONS ARE DISMISSED. 28. ON IDENTICAL SET OF FACTS, THE COORDINATE BENCH IN THE CASE OF DEEPAK NAGAR 73 ITR [TRIB] 74 HAS ALLOWED THE APPEA L OF THE ASSESSEE. THE RELEVANT FINDINGS OF THE COORDINATE BENCH READ AS UNDER: 22. FOR THE SAKE OF REPETITION, THE ENTIRE ASSESSM ENT HAS BEEN FRAMED BY THE ASSESSING OFFICER WITHOUT CONDUC TING ANY ENQUIRY FROM THE RELEVANT PARTIES OR INDEPENDENT SO URCE OR EVIDENCE BUT HAS MERELY RELIED UPON THE STATEMENTS RECORDED BY THE INV WING AS WELL AS INFORMATION RECEIVED FROM T HE INV 14 WING. IT IS APPARENT FROM THE ASSESSMENT ORDER THA T THE ASSESSING OFFICER HAS NOT CONDUCTED ANY INDEPENDENT AND SEPARATE ENQUIRY IN THIS CASE OF THE ASSESSEE. EVE N THE STATEMENT RECORDED BY THE INV WING HAS NOT BEEN GOT CONFIRMED OR CORROBORATED BY THE PERSON DURING THE ASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER OUGHT TO HAVE C ONDUCTED A SEPARATE AND INDEPENDENT ENQUIRY AND ANY INFORMATIO N RECEIVED FROM THE INV WING IS REQUIRED TO BE CORROBORATED AN D REASSERTED/REAFFIRMED DURING THE ASSESSMENT PROCEED INGS BY EXAMINING THE CONCERNED PERSONS WHO CAN AFFIRM THE STATEMENTS ALREADY RECORDED BY ANY OTHER AUTHORITY OF THE DEPA RTMENT. 23. THERE IS NO DISPUTE THAT THE STATEMENT WHICH WA S RELIED UPON BY THE ASSESSING OFFICER WAS NOT RECORDED BY T HE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS BUT IT WAS PRE EXISTING STATEMENT RECORDED BY THE INV WING AND THE SAME CANNOT BE THE SOLE BASIS OF ASSESSMENT WITHOUT COND UCTING PROPER ENQUIRY AND EXAMINATION DURING THE ASSESSMEN T PROCEEDINGS ITSELF. IN OUR HUMBLE OPINION, NEITHER THE ASSESSING OFFICER CONDUCTED ANY ENQUIRY NOR HAS BROUGHT ANY C LINCHING EVIDENCE TO DISPROVE THE EVIDENCES PRODUCED BY THE ASSESSEE. 24. OUR ABOVE VIEW IS FORTIFIED BY THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF FAIR INVEST LTD 357 ITR 146. THE RELEVANT FINDINGS OF THE HON'BLE JURISDICTIONAL HIGH COURT OF DELHI READ AS UNDER: 15 6. THIS COURT HAS CONSIDERED THE SUBMISSIONS OF TH E PARTIES. IN THIS CASE THE DISCUSSION BY THE CIT(APP EALS) WOULD REVEAL THAT THE ASSESSEE HAS FILED DOCUMENTS INCLUDING CERTIFIED COPIES ISSUED BY THE REGISTRAR OF COMPANIES IN RELATION TO THE SHARE APPLICATION, AFF IDAVITS OF THE DIRECTORS, FORM 2 FILED WITH THE ROC BY SUCH APPLICANTS CONFIRMATIONS BY THE APPLICANT FOR COMPA NY'S SHARES, CERTIFICATES BY AUDITORS ETC. UNFORTUNATELY , THE ASSESSING OFFICER CHOSE TO BASE HIMSELF MERELY ON T HE GENERAL INFERENCE TO BE DRAWN FROM THE READING OF T HE INVESTIGATION REPORT AND THE STATEMENT OF MR. MAHES H GARG. TO ELEVATE THE INFERENCE WHICH CAN BE DRAWN O N THE BASIS OF READING OF SUCH MATERIAL INTO JUDICIAL CON CLUSIONS WOULD BE IMPROPER, MORE SO WHEN THE ASSESSEE PRODUC ED MATERIAL. THE LEAST THAT THE ASSESSING OFFICER OUGH T TO HAVE DONE WAS TO ENQUIRE INTO THE MATTER BY, IF NEC ESSARY, INVOKING HIS POWERS UNDER SECTION 131 SUMMONING THE SHARE APPLICANTS OR DIRECTORS. NO EFFORT WAS MADE I N THAT REGARD. IN THE ABSENCE OF ANY SUCH FINDING THAT THE MATERIAL DISCLOSED WAS UNTRUSTWORTHY OR LACKED CRED IBILITY THE ASSESSING OFFICER MERELY CONCLUDED ON THE BASIS OF ENQUIRY REPORT, WHICH COLLECTED CERTAIN FACTS AND T HE STATEMENTS OF MR. MAHESH GARG THAT THE INCOME SOUGH T TO BE ADDED FELL WITHIN THE DESCRIPTION OF SECTION 68 . 16 25. CONSIDERING 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 AND AS MENTIONED ELSEWHERE, SUCH DISCHARGE OF ONUS IS PURELY A QUESTION OF FACT AND THEREFORE, THE JUDICIAL DECISI ONS RELIED UPON BY THE LD. DR WOULD DO NO GOOD ON THE PECULIAR PLET HORA OF EVIDENCES IN RESPECT OF THE FACTS OF THE CASE IN HA ND. WE, ACCORDINGLY, DIRECT THE ASSESSING OFFICER TO ACCEPT THE LTCG OF RS. 11,93,55,564/- DECLARED AS SUCH. 26. SINCE WE HAVE ACCEPTED THE GENUINENESS OF THE L TCG, WE DO NOT FIND ANY MERIT IN THE CONSEQUENTIAL ADDITION OF RS. 6,05,312/- AND THE SAME IS ALSO DIRECTED TO BE DELE TED. 29. IN HIS WRITTEN SUBMISSIONS, THE LD. DR HAS REFE RRED TO VARIOUS JUDGMENTS AND HEAVILY RELIED UPON THE DECISION OF T HE HON'BLE HIGH COURT OF DELHI IN THE CASE OF SUMAN PODDAR ITA NO. 841/2019 AND IN THE CASE OF UDIT KALRA ITA NO. 220/2019 AND SEVERAL OTHER DECISIONS OF THE COORDINATE BENCH. 30. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE O RDERS OF THE AUTHORITIES BELOW AND HAVE CAREFULLY PERUSED THE JU DICIAL DECISIONS RELIED UPON BY THE LD. DR. WE FIND THAT IN ALL THO SE CASES, EITHER THE 17 ASSESSEE ENTERED INTO SOLITARY TRANSACTION RESULTIN G INTO LONG TERM CAPITAL GAIN OR PRIOR TO THE SOLITARY TRANSACTION, THE ASSESSEE WAS NEITHER ENGAGED IN THE PURCHASE AND SALE OF SHARES NOR SUBSEQUENT TO EARNING OF LONG TERM CAPITAL GAIN, THE ASSESSEE WAS FOUND TO BE ENGAGED IN THE PURCHASE AND SALE OF SHARES. THESE FACTS ARE CLEARLY DISTINGUISHABLE FROM THE FACTS OF THE CASE IN HAND. AS MENTIONED ELSEWHERE, THE ASSESSEE IS A HABITUAL INVESTOR HAVI NG PORTFOLIO OF INVESTMENT IN SHARES IN CRORES AND IS STILL HOLDING INVESTMENT IN SHARES IN SEVERAL CRORES AND IS CONSTANTLY ENGAGED IN INVE STING IN SHARES OF VARIOUS COMPANIES. 31. CONSIDERING 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 AND AS M ENTIONED ELSEWHERE, SUCH DISCHARGE IS PURELY A QUESTION OF FACT. WE, A CCORDINGLY, DIRECT THE ASSESSING OFFICER TO ACCEPT THE LONG TERM CAPITAL G AIN OF RS. 5,70,91,750/- DECLARED AS SUCH. 32. SINCE WE HAVE ACCEPTED THE GENUINENESS OF LONG TERM CAPITAL GAIN, WE DO NOT FIND ANY MERIT IN THE CONSEQUENTIAL ADDITION OF RS. 11,43,835/- AND THE SAME IS ALSO DIRECTED TO BE DEL ETED. 18 33. IN THE RESULT, THE APPEAL FILED BY THE ASSESS EE IN ITA NO. 6703/DEL/2019 IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 10.01 .2020. SD/- SD/- (BHAVNESH SAINI) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 10 TH JANUARY, 2020. VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT ASST. REGISTRAR 4. CIT(A) ITAT, NEW DELHI 5. DR 19 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER
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