INCOME TAX OFFICER 4(3)(3), MUMBAI V. SAJJAN KUMAR BAJORIA, MUMBAI

ITA 7354/MUM/2017

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 7742 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2013-2014
• Appeal Filed On: 26-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA L D
• Assessee Lawyers: HARIOM TULSIYANI LD
• Keywords: Unexplained cash credit; Principle of natural justice; Opportunity of cross examination; Third party statement; Capital Gains
• Section: 143(3); 133A; 68; 6; 11

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO.7354/MUM/2017 ( / ASSESSMENT YEAR: 2013-14) INCOME TAX OFFICER - 4(3)(3) ROOM NO.637, 6TH FLOOR AAYKAR BHAWAN, MUMBAI-400 020. / VS. SHRI SAJJAN KUMAR BAJO RIA 384-B, DABHOLKARWADI, 3RD FLOOR KALBADEVI, MUMBAI-400 002. !' ./ ./PAN/GIR NO. AIEPB-2732-L ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) & ./ I.T.A. NO.7355/MUM/2017 ( / ASSESSMENT YEAR: 2014-15) INCOME TAX OFFICER - 4(3)(3) ROOM NO.637, 6TH FLOOR AAYKAR BHAWAN, MUMBAI-400 020. / VS. SMT. SUSHILA DEVI BAJORIA 384-B, DABHOLKARWADI, 3RD FLOOR KALBADEVI, MUMBAI-400 002. !' ./ ./PAN/GIR NO. AIEPB-2731-K ( '$ /APPELLANT ) : ( %&'$ / RESPONDENT ) ASSESSEE BY : SHRI HARIOM TULSIYANI LD. AR REVENUE BY : SHRI T.S. KHALSA- LD. SR. DR / DATE OF HEARING : 07/01/2021 / DATE OF PRONOUNCEMENT : 20/01/2021 / O R D E R PER BENCH 1. AFORESAID APPEALS BY REVENUE FOR ASSESSMENT YEAR S 2013-14 & 2014-15 IN CASE OF DIFFERENT ASSESSEE CONTEST SEP ARATE ORDER OF LEARNED FIRST APPELLATE AUTHORITY. HOWEVER, THE FAC TS AS WELL AS 2 ISSUES ARE IDENTICAL IN BOTH THE APPEALS AND IT IS ADMITTED POSITION THAT ADJUDICATION IN ANY OF THE APPEAL WOULD EQUALL Y APPLY TO OTHER APPEAL ALSO. ACCORDINGLY, WE PROCEED TO ADJUDICATE ITA NO.7354/MUM/2017 WHICH ASSAILS THE ORDER OF LD. COM MISSIONER OF INCOME TAX (APPEALS)-9, MUMBAI [CIT(A)], APPEAL NO. CIT(A)- 9/ITO-4(3)(3)/125/16-17 DATED 03/10/2017 WHEREIN TH E ASSESSEE IS AGGRIEVED BY CONFIRMATION OF CERTAIN ADDITION U/S 6 8 SINCE THE CLAIM MADE U/S 10(38) TOWARDS SALE OF SHARES WAS DENIED. 2. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS, P ERUSED ORDERS OF LOWER AUTHORITIES AND GONE THROUGH DOCUME NTS AND WRITTEN SUBMISSIONS AS PLACED IN THE PAPER-BOOK. TH E JUDICIAL PRECEDENTS AS CITED DURING THE COURSE OF HEARING HA VE DULY BEEN DELIBERATED UPON. OUR ADJUDICATION TO THE APPEAL WO ULD BE AS GIVEN IN SUCCEEDING PARAGRAPHS. ASSESSMENT PROCEEDINGS 3.1 AN ASSESSMENT HAS BEEN FRAMED AGAINST ASSESSEE FOR THE YEAR UNDER CONSIDERATION U/S 143(3) ON 22/03/2016 W HEREIN THE ASSESSEE HAS BEEN SADDLED WITH CERTAIN ADDITION U/S 68 IN VIEW OF THE FACT THAT LONG-TERM CAPITAL GAIN (LTCG) EARNED ON SALE OF CERTAIN SHARES OF AN ENTITY NAMELY M/S QUEST FINANC IAL SERVICES LIMITED (QFSL) WAS DECLARED AS BOGUS AND THE SAME W AS ADDED TO THE INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CRED IT U/S 68. 3.2 THE ALLEGATION OF LD. AO WOULD STEM FROM THE FA CT THAT PURSUANT TO ENQUIRY CONDUCTED BY INVESTIGATION WING , KOLKATA IN THE CASE OF A PERSON NAMELY SHRI PRAKASH JAJODIA, IT TR ANSPIRED THAT 3 SHRI PRAKASH JAJODIA, WITH THE HELP OF NUMBER OF DU MMY ENTITIES, PROVIDED BOGUS LTCG TO VARIOUS BENEFICIARIES AGAINS T COMMISSION. THE SHARES WERE STATED TO BE SOLD BY THE ASSESSEE T HROUGH AN ENTITY NAMELY M/S ANUMATI STOCK BROKING PRIVATE LIM ITED (ASBPL) WHICH WAS ALLEGEDLY PROMOTED BY SHRI PRAKASH JAJODI A. 3.3 IN RESPONSE TO NOTICE ISSUED BY INVESTIGATION W ING, SHRI PRAKASH JAJODIA ADMITTED TO HAVE ACCEPTED CASH FROM VARIOUS BENEFICIARIES AND DEPOSITED THE SAME IN VARIOUS DUM MY COMPANIES BY CREATING ARTIFICIAL LAYERING WHICH WAS FINALLY U SED TO BUY SHARES FROM THE BENEFICIARIES INCLUDING ASSESSEE TO PROVID E BOGUS LTCG. ALL THESE DUMMY COMPANIES WERE STATED TO BE MANAGED AND CONTROLLED BY SHRI PRAKASH JAJODIA AND HIS ASSOCIAT ES. BASED ON THESE FINDINGS, IT WAS ALLEGED BY LD.AO THAT THE AS SESSEE INTRODUCED HIS OWN MONEY IN THE GARB OF LTCG AND AC CORDINGLY, ISSUED A SHOW-CAUSE NOTICE TO THE ASSESSEE DURING T HE COURSE OF ASSESSMENT PROCEEDINGS TO SUBSTANTIATE THESE TRANSA CTIONS. 3.4 THE FACT ARE THAT THE ASSESSEE HAD PURCHASED 40 00 SHARES OF AN ENTITY NAMELY M/S PRAN JEEVAN DISTRIBUTORS PVT. LTD. (PDPL) ON 19/07/2010 AT A PRICE OF RS.500/- PER SHARE FROM M/ S FAIRDEAL VINCOM PRIVATE LIMITED, ALLEGEDLY ANOTHER BOGUS ENT ITY. ADMITTEDLY, THE PAYMENT WAS MADE THROUGH BANKING CHANNELS. HOWE VER, SUBSEQUENTLY M/S PDPL GOT MERGED WITH M/S QFSL DURI NG SEPTEMBER, 2011 WITH THE APPROVAL OF HONBLE HIGH C OURT AT CALCUTTA AND EXISTING SHARES OF M/S PDPL GOT EXCHAN GED WITH NEW SHARES OF M/S QFSL. THESE SHARES WERE ULTIMATELY SO LD BY THE ASSESSEE THROUGH RECOGNIZED STOCK EXCHANGE IN ONLIN E MECHANISM 4 BETWEEN 22/01/2013 TO 07/03/2013 GIVING RISE TO LTC G IN THE HANDS OF THE ASSESSEE. 3.5 THE ASSESSEE DEFENDED THE GENUINENESS OF THE TR ANSACTIONS BY SUBMITTING THAT THE INVESTMENT WERE MADE IN ORDI NARY COURSE AND THE SHARE WERE SOLD THROUGH RECOGNIZED STOCK EX CHANGE IN ONLINE MECHANISM. THE SALE CONSIDERATION WAS RECEIV ED THROUGH BANKING CHANNELS. ALL THE CONDITIONS AS PRESCRIBED U/S 10(38) WERE DULY FULFILLED BY THE ASSESSEE. THE ASSESSEE ALSO D ENIED HAVING MET SHRI PRAKASH JAJODIA AT ANY TIME AND DENIED HAV ING MADE ANY CASH PAYMENT TO ANY OF HIS ENTITIES. THE ATTENTION WAS DRAWN TO THE FACT THAT THE ASSESSEE WAS HABITUAL INVESTOR ENGAGE D IN TRADING OF SHARES SINCE PAST SEVERAL YEARS. IN SUPPORT OF IMPUGNED TRANSACTIONS, COPIES OF PURC HASE BILL ISSUED BY M/S FAIRDEAL VINCOM PRIVATE LIMITED, BANK STATEM ENT, SALE CONTRACT NOTES ISSUED BY M/S ASBPL AS WELL AS DEMAT STATEMENTS WERE SUBMITTED. THE SALE CONSIDERATION WAS SHOWN TO HAVE BEEN RECEIVED THROUGH BANKING CHANNELS. A PLEA WAS RAISE D THAT NO ADDITION COULD BE MADE SOLELY ON THE BASIS OF STATE MENT OF ANY UNKNOWN PERSON WITHOUT GIVING ANY OPPORTUNITY OF CR OSS EXAMINATION. AT THE SAME TIME, THE ASSESSEE DEMANDE D CROSS- EXAMINATION OF PERSONS MAKING ADVERSE STATEMENT AGA INST THE ASSESSEE. ANOTHER PLEA WAS THAT SINCE SALE TRANSACT IONS TOOK PLACE THROUGH RECOGNIZED STOCK EXCHANGE IN ONLINE MECHANI SM AND PROCEEDS WERE RECEIVED THROUGH NORMAL BANKING CHANN ELS, THE SOURCE OF CREDIT WAS FULLY EXPLAINED AND NO ADDITIO N COULD BE MADE AS UNEXPLAINED CASH CREDIT U/S 68 SINCE ASSESSEE HA D ESTABLISHED THE IDENTITY OF THE PAYER AS WELL AS GENUINENESS OF THE TRANSACTIONS. 5 3.6 HOWEVER, PRIMARILY GOING BY THE FINDINGS OF INV ESTIGATION WING, LD. AO REJECTED THE SUBMISSIONS THUS MADE BY THE AS SESSEE BY ALLEGING THAT THE ENTIRE TRANSACTION WAS CAMOUFLAGE D IN THE GUISE OF LTCG. THE SHARES OF A NON-DESCRIPT DUMMY COMPANY WA S PURCHASED WITHOUT VERIFYING THE FINANCIAL STRENGTH, NATURE OF BUSINESS, ITS PROFITABILITY & CREDENTIALS ETC. FINA LLY, THE SALE CONSIDERATION THUS RECEIVED WAS TREATED AS ASSESSEE S UNDISCLOSED INCOME AND ADDED AS UNEXPLAINED CASH CREDIT U/S 68 WHILE COMPUTING THE TOTAL INCOME. PROCEEDINGS BEFORE LD. CIT(A) 4.1 AGGRIEVED AS AFORESAID, THE ASSESSEE CONTESTED THE IMPUGNED ADDITION BEFORE LD. CIT(A) AND INTER-ALIA, REITERATED THAT THE GAINS SO EARNED WERE GENUINE AND THE SAME COULD NOT BE TREATED AS BOGUS MERELY ON THE BASIS OF THIRD-PARTY STATEMENTS PARTICULARLY WHEN NO OPPORTUNITY OF CROSS-EXAMINATI ON WAS PROVIDED TO THE ASSESSEE. RELIANCE WAS PLACED ON VARIOUS JUD ICIAL PRONOUNCEMENTS IN SUPPORT OF VARIOUS PLEAS, WHICH H AVE ALREADY BEEN EXTRACTED IN THE IMPUGNED ORDER AND NOT REPEAT ED HERE TO AVOID DUPLICATION. 4.2 THE LD. CIT(A) OBSERVED THAT THE ASSESSEE WAS R EGULAR INVESTOR IN EQUITY MARKET AS EVIDENT FROM ITS BALAN CE SHEET FOR PAST SEVERAL YEARS. THE TRANSACTIONS OF PURCHASE AND SAL E OF SHARES WERE BACKED BY REQUISITE DOCUMENTARY EVIDENCES AND ALL THE CONDITIONS AS PRESCRIBED U/S 10(38) WERE DULY FULFI LLED BY THE ASSESSEE. THE PURCHASE OF SHARES IN EARLIER YEARS W AS ACCEPTED AND NOT HELD TO BE BOGUS. THE DOCUMENTARY EVIDENCES AS FURNISHED BY THE ASSESSEE WERE NOT FOUND TO BE FALSE OR FABRI CATED, IN ANY 6 MANNER. SINCE THE SHARES WERE SOLD IN ONLINE MECHAN ISM THROUGH RECOGNIZED STOCK EXCHANGE, THERE WAS NO PRIVITY OF CONTRACT BETWEEN THE ASSESSEE AND BUYER OF THESE SHARES. 4.3 IT WAS ALSO OBSERVED THAT LD. AO, DURING THE CO URSE OF ASSESSMENT PROCEEDINGS, HAD TAKEN A DETAILED STATEM ENT ON OATH FROM THE ASSESSEE WHEREIN LD. AO COULD NOT DISPROVE HIS CONTENTIONS AND DID NOT FIND ANYTHING ADVERSE WITH REGARD TO THE IMPUGNED CAPITAL GAINS BUT THIS FACT WAS CONVENIENT LY IGNORED BY LD. AO WHILE FRAMING THE ASSESSMENT. THE PURCHASE A S WELL AS SALE OF SHARES WAS SUFFICIENTLY DOCUMENTED AND SUPP ORTED BY A NUMBER OF EVIDENCES IN THE FORM OF SHARE PURCHASE B ILL, BANK STATEMENT EVIDENCING MOVEMENT OF FUNDS THROUGH BANK ING CHANNELS, DEMAT STATEMENT EVIDENCING MOVEMENT OF SH ARES AND SALE CONTRACT NOTES. THE SALE TRANSACTIONS WERE SUB JECTED TO SECURITIES TRANSACTION TAX (STT). NONE OF THESE EVI DENCES COULD BE CONTROVERTED BY LD. AO. 4.4 PROCEEDING FURTHER, ANOTHER FINDING WAS THAT IN VESTIGATION REPORT AS WELL AS RECORDED STATEMENTS AS FORWARDED BY DIT (INVESTIGATION) DID NOT SPECIFICALLY NAME THE ASSES SEE AS BENEFICIARY OF SUCH TRANSACTIONS. THEREFORE, THE IN FERENCE DRAWN BY LD. AO SOLELY ON THE BASIS OF SAID REPORTS AND STAT EMENT OF SHRI PRAKASH JAJODIA COULD NOT FORM BASIS FOR TREATING T HE LTCG AS BOGUS. THE LD.AO FAILED TO CONDUCT ANY INDEPENDENT INVESTIGATION TO POINT OUT DEFECTS IN THE EVIDENCES FURNISHED BY THE ASSESSEE. NO ADVERSE INFERENCE COULD BE DRAW WITH RESPECT TO THE GENUINENESS OF THE TRANSACTIONS MERELY BECAUSE THE ADDRESSES OF SEVERAL ENTITIES WERE COMMON. 7 4.5 ANOTHER OBSERVATION WAS THAT THE STATEMENT MADE BY SHRI PRAKASH JAJODIA U/S 133A DURING THE COURSE OF SURVE Y PROCEEDINGS WOULD HAVE NO EVIDENTIARY VALUE UNLESS CORROBORATED WITH COGENT MATERIAL AND THE SAME COULD NOT FORM THE BASIS OF A DDITION IN CASE OF THIRD-PARTIES AS HELD BY HONBLE APEX COURT IN CIT V/S S.KHADER KHAN 300 ITR 157 AS WELL AS HONBLE BOMBAY HIGH COURT IN CIT VS ASHISH INTERNATIONAL (ITA NO. 4299 OF 2009 DATED 22/02/2011). NO OPPORTUNITY OF CROSS-EXAMINATION OF PERSONS MAKING ADVERSE STATEMENT AGAINST THE ASSESSEE WAS E VER PROVIDED TO THE ASSESSEE. FURTHER, THE STATEMENT MADE BY SH RI PRAKASH JAJODIA DID NOT REFER TO ANY EXCHANGE OF CASH BETWE EN THE ASSESSEE AND ANY OF HIS ENTITIES. THEREFORE, THE SA ID TRANSACTIONS COULD NOT BE TREATED AS BOGUS TRANSACTIONS IN TERMS OF DECISION OF MUMBAI TRIBUNAL IN SHYAM R.PAWAR V/S DCIT (ITA NO. 5585/MUM2011 DATED 04/05/2012). THE APPEAL FILED BY THE DEPARTMENT AGAINST THE SAID ORDER STOOD DISMISSED B Y HONBLE BOMBAY HIGH COURT WHICH IS REPORTED AT 54 TAXMANN.C OM 108. SIMILAR WAS THE DECISION OF MUMBAI TRIBUNAL IN MUKESH MAROLIA V/S CIT (6 SOT 247) MUMBAI WHICH WAS FIRST APPROVED BY HONBLE BOMBAY HIGH COURT AND THEREAFTER SLP FILED BY THE D EPARTMENT AGAINST THE SAME STOOD DISMISSED BY HONBLE APEX CO URT BY WAY OF CA NO.20146/2012 DATED 27/01/2014. SIMILAR WAS THE RATIO OF VARIOUS OTHER DECISIONS AS ELABORATED IN THE IMPUGN ED ORDER. IN THE ABOVE BACKGROUND, THE ADDITIONS MADE BY LD. AO WERE DELETED WHICH HAS GIVEN RISE TO REVENUES APPEAL BE FORE US. 8 OUR ADJUDICATION 5. WE HAVE CAREFULLY CONSIDERED THE FACTUAL MATRIX AS ENUMERATED IN THE PRECEDING PARAGRAPHS AND GONE THR OUGH THE ORDERS OF LOWER AUTHORITIES. WE FIND THAT THE PURCH ASE AS WELL AS SALE TRANSACTIONS UNDERTAKEN BY THE ASSESSEE WERE D ULY BACKED BY SUFFICIENT DOCUMENTARY EVIDENCES IN THE SHAPE OF PU RCHASE BILLS, BANK STATEMENTS, DEMATS STATEMENTS AND SALE CONTRAC T NOTES. THE SALES TRANSACTIONS HAVE TAKEN PLACE IN ONLINE MECHA NISM THROUGH RECOGNIZED STOCK EXCHANGE WHEREIN THE IDENTITY OF T HE BUYER WOULD NOT BE KNOWN AND THERE WOULD BE NO PRIVITY OF CONTR ACT BETWEEN THE ASSESSEE AND PROSPECTIVE BUYERS OF SHARES. THE FUND S HAVE MOVED IN AND OUT THROUGH BANKING CHANNELS. SIMILARL Y THE SHARES HAVE MOVED IN AND OUT OF ASSESSEES DEMAT STATEMENT . ALL THESE EVIDENCES REMAIN UNCONTROVERTED AND NO DEFECT HAS B EEN FOUND IN THE SAME. IT IS ANOTHER UNDISPUTED FACT THAT THE AS SESSEE WAS A HABITUAL INVESTOR OF SHARES FOR PAST SEVERAL YEARS. THE PURCHASE OF SHARES IN EARLIER YEAR WAS DULY REFLECTED IN ITS BA LANCE SHEET WHICH WAS ACCEPTED BY THE REVENUE. APPARENTLY, ALL THE CO NDITIONS AS PRESCRIBED U/S 10(38) HAVE DULY BEEN FULFILLED BY T HE ASSESSEE. 6. ON THE OTHER HAND, THE WHOLE BASIS OF DISREGARDI NG THESE TRANSACTIONS IS THE FINDINGS RENDERED BY INVESTIGAT ION WING MERELY ON THE BASIS OF STATEMENT OF SHRI PRAKASH JAJODIA. FIRSTLY, THIS STATEMENT WAS MADE U/S 133A DURING SURVEY OPERATION S WHICH WOULD HAVE NO EVIDENTIARY VALUE UNLESS BACKED BY CO GENT CORROBORATIVE MATERIAL ON RECORD. SECONDLY, THE OPP ORTUNITY TO CROSS-EXAMINE THE PERSONS MAKING ADVERSE STATEMENT WAS NEVER PROVIDED TO THE ASSESSEE DESPITE SPECIFIC REQUEST O F THE ASSESSEE. 9 ANOTHER UNCONTROVERTED FINDING IS THAT THE ASSESSEE WAS NOT NAMED EITHER IN INVESTIGATION REPORT OR IN THE STATEMENT MADE BY SHRI PRAKASH JAJODIA. THERE IS NO ADMISSION OR FINDING T HAT ANY CASH GOT EXCHANGED BETWEEN THE ASSESSEE AND ANY OF THE ALLEG ED BOGUS ENTITIES OF SHRI PRAKASH JAJODIA. IT IS TRITE LAW T HAT NO ADDITIONS COULD BE MADE MERELY ON THE BASIS OF SUSPICION, CONJECTUR ES OR SURMISE. THE ADDITION THUS MADE PURELY ON THE BASIS OF THIRD -PARTY STATEMENT RECORDED AT THE BACK OF THE ASSESSEE COULD NOT BE S USTAINED IN THE EYES OF LAW UNLESS THE SAME ARE CONFRONTED TO THE A SSESSEE AND THE SAME ARE BACKED BY ANY CORROBORATIVE MATERIAL. THE HONBLE APEX COURT IN M/S ANDAMAN TIMBER INDUSTRIES V/S CCE (CA NO.4228 OF 2006) HELD THAT NOT ALLOWING THE ASSESSEE TO CROSS-EXAMINE THE WITNESSES BY THE ADJUDICATING AUT HORITY THOUGH THE STATEMENT OF THOSE WITNESSES WERE MADE THE BASI S OF THE IMPUGNED ORDER IS A SERIOUS FLAW WHICH MAKES THE OR DER NULLITY IN AS MUCH AS IT AMOUNTS TO VIOLATION OF PRINCIPAL OF NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTE D. THE PROPOSITION THAT ADDITIONS MERELY ON THE BASIS OF SUSPICIOUS, CONJECTURES OR SURMISES COULD NOT BE SUSTAINED IN T HE EYES OF LAW STEM FROM THE DECISION OF HONBLE SUPREME COURT IN OMAR SALAY MOHAMED SAIT V/S CIT (1959 37 ITR 151) WHEREIN IT WAS HELD THAT THE SUSPICION HOWEVER STRONG COULD NOT PARTAKE THE CHARACTER OF LEGAL EVIDENCE AS HELD BY HONBLE SUPREME COURT IN UMACHARAN SHAW & BROS. V/S CIT (1959 37 ITR 271) . IN VIEW OF THE FORGOING, IT COULD VERY WELL BE SAID THAT ONUS CASTED UPON LD. AO TO CORROBORATE THE IMPUGNED ADDITIONS B Y CONTROVERTING THE DOCUMENTARY EVIDENCES FURNISHED B Y THE 10 ASSESSEE AND BY BRINGING ON RECORD, ANY COGENT MATE RIAL TO SUSTAIN THOSE ADDITIONS, COULD NOT BE DISCHARGED. THE WHOLE BASIS OF MAKING ADDITIONS IS THIRD PARTY STATEMENT AND NO OP PORTUNITY OF CROSS-EXAMINATION HAS BEEN PROVIDED TO THE ASSESSEE TO CONFRONT THE SAID PARTIES. AS AGAINST THIS, THE ASSESSEES P OSITION THAT THAT THE TRANSACTIONS WERE GENUINE AND DULY SUPPORTED BY VARIOUS DOCUMENTARY EVIDENCES, COULD NOT BE DISTURBED BY TH E REVENUE. 7. THE CASE LAW OF SEBI V/S KISHORE R. AJMERA (6 SCC 368) AS RELIED UPON BY LD. SR. DR DURING THE COURSE OF H EARING HAS BEEN RENDERED IN THE CONTEXT OF PENALTY IMPOSED ON BROKE RS WHO WERE FOUND TO BE INDULGING IN CIRCULAR TRADING. HOWEVER, THE FACTS ARE DIFFERENT HERE SINCE THE ALLEGATIONS OF LD. AO ARE NOT BACKED BY ANY COGENT MATERIAL TO ESTABLISH THE ROLE OF THE ASSESS EE IN MANIPULATING THE SHARE PRICES. SIMILARLY, THE DECIS ION OF HONBLE APEX COURT IN SEBI V/S RAKHI TRADING PVT. LTD. (CA NO. 1969 OF 2011) DEAL WITH A SITUATION WHEREIN THERE WAS ALLEGATION OF NON- GENUINE TRANSACTIONS CARRIED OUT BY TRADERS AND BRO KERS, WHICH IS NOT THE CASE HERE. BOTH THESE CASE LAWS ARE IN DIFF ERENT FACTUAL CONTEXT AND HENCE, NOT APPLICABLE TO THE FACTS OF T HE PRESENT CASE. 8. KEEPING IN VIEW ALL THESE FACTORS, WE ARE OF THE CONSIDERED OPINION THAT THE ADDITIONS THUS MADE BY LD. AO HAD NO LEGS TO STAND AND THEREFORE, THE SAME HAS RIGHTLY BEEN DELE TED BY LD. CIT(A). FINDING NO REASON TO INTERFERE IN THE IMPUG NED ORDER, WE DISMISS THE APPEAL. ITA NO. 7355/MUM/2017, AY 2014-15 9. AS STATED EARLIER, THE FACTS AS WELL AS ISSUES ARE PARI-MATERIA THE SAME FOR THIS ASSESSEE. AN ASSESSMENT WAS FRAME D U/S 143(3) 11 ON 28/12/2016 WHEREIN THE EXEMPTION CLAIMED U/S 10( 38) WAS DENIED AND SALE PROCEEDS OF SHARES WERE CONSIDERED AS UNEXPLAINED CASH CREDIT U/S 68. HOWEVER, UPON FURTH ER APPEAL, THE ADDITIONS WERE DELETED BY LD. FIRST APPELLATE AUTHO RITY VIDE ORDER DATED 04/10/2017 ON SIMILAR LOGIC AND REASONING. AG GRIEVED, THE REVENUE IS IN FURTHER APPEAL BEFORE US WITH SIMILAR GROUNDS OF APPEAL. FACTS AS WELL AS ISSUES BEING PARI-MATERIA THE SAME AS IN PRECEDING APPEAL, OUR FINDINGS AS WELL AS ADJUDICAT ION THEREIN SHALL MUTATIS-MUTANDIS APPLY TO THIS APPEAL ALSO. CONSEQUENTLY, THE APPEAL STAND DISMISSED. CONCLUSION 10. BOTH THE APPEALS STAND DISMISSED. ORDER PRONOUNCED ON 20TH JANUARY, 2021. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 20/01/2021 SR.PS, JAISYVARGHESE / COPY OF THE ORDER FORWARDED TO : 1. '$ / THE APPELLANT 2. %&'$ / THE RESPONDENT 3. - ( ) / THE CIT(A) 4. - / CIT CONCERNED 5. ./% ( 0 , 0 , / DR, ITAT, MUMBAI 6. /123 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.