Tapas Kumar Mallick, New Delhi V. ACIT, Circle-32(1), New Delhi

ITA 8142/DEL/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9554 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2015-2016
• Appeal Filed On: 24-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH DUBEY
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Unexplained investment; Question of law; Cost of acquisition; Accommodation entries; Penny stocks; Bogus
• Section: 68; 69; 69C; 13; 22; 20

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI G BEN CH, NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER, AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 8142/DEL/2018 [ASSESSMENT YEAR: 2015-16] SHRI TAPAS KUMAR MALLICK VS. THE A.C.I.T. D 96, FREEDOM FIGHTER ENCLAVE CIRLCE 32(1) WEST DELHI 110068. NEW DELHI PAN: AEQPM 2677 B [APPELLANT] [RESPONDENT] DATE OF HEARING : 15.03.2021 DATE OF PRONOUNCEMENT : 19.03.2021 ASSESSEE BY : SHRI RAKESH GUPTA, ADV SHRI SOMIL AGARWAL, ADV REVENUE BY : SHRI PRAKASH DUBEY, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A) - 11, NEW DELHI DATED 06.11.2018 PERTAIN ING TO A.Y 2015-16. 2 2. THE GRIEVANCE OF THE ASSESSEE IS TWO-FOLD FIRS TLY, THE ASSESSEE IS AGGRIEVED BY THE ADDITION OF RS. 2,10,23,848/- U/S 68 OF THE INCOME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] THEREBY DENYING THE CLAIM OF EXEMPTION U/S 10(38) OF THE AC T AND, SECONDLY, THE ASSESSEE IS AGGRIEVED BY THE ADDITION OF RS. 14 LAKHS U/S 69 OF THE ACT AS UNEXPLAINED INVESTMENT. 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. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE PURCHASED 40000 EQUITY SHARES THROUGH INITIAL PUBLI C OFFER [IPO] OF HPC BIOSCIENCE LTD ON 15.03.2013 AND THIS FACT IS EVIDE NT FROM THE DEMAT ACCOUNT WITH AXIS BANK LTD EXHIBITED AT PAGE 4 OF T HE PAPER BOOK. PAYMENT WAS MADE ON 16.03.2013 WHICH IS EVIDENT FRO M THE STATEMENT OF ACCOUNT WITH AXIS BANK EXHIBITED AT PAGE 6 OF TH E PAPER BOOK. 3 5. AT THE VERY OUTSET, WE HAVE TO STATE THAT THE PU RCHASE OF 40000 EQUITY SHARES THROUGH IPO OF HPC BIOSCIENCE LTD WAS IN F.Y. 2012-13 RELEVANT TO A.Y 2013-14. THEREFORE, IN OUR CONSIDE RED OPINION, SINCE THE TRANSACTION PERTAINED TO A.Y 2013-14 AND NOT 20 15-16 WHICH IS THE YEAR UNDER CONSIDERATION, NO ADDITION CAN BE MADE U /S 69C OF THE ACT FOR THE YEAR UNDER CONSIDERATION. ACCORDINGLY, ADD ITION OF RS. 14 LAKHS IS DIRECTED TO BE DELETED. 6. AS MENTIONED ELSEWHERE, OUT OF 40000 EQUITY SHAR ES WHICH WERE PURCHASED IN F.Y. 2012-13, 39000 EQUITY SHARES WERE SOLD DURING THE YEAR UNDER CONSIDERATION FOR A SALE CONSIDERATION O F RS. 2,10,23,848/-, THE SALES OF SHARES ARE EVIDENT FROM THE DEMAT STAT EMENTS, AND AFTER DEDUCTING COST OF ACQUISITION OF RS. 14 LAKHS, LONG TERM CAPITAL GAIN WAS DECLARED AT RS. 1,96,23,848/-. THIS LONG TERM CAPITAL GAIN WAS CLAIMED TO BE EXEMPT U/S 10(38) OF THE ACT. 7. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEED INGS AND DRAWING SUPPORT FROM THE OUTCOME OF INVESTIGATION B Y SEBI AS WELL AS THE INCOME TAX DEPARTMENT, THE ASSESSING OFFICER FO RMED A BELIEF THAT THE SHARE PRICES OF HPC BIOSCIENCES LTD WERE RIGGED BY A CARTEL. 4 8. THE ASSESSING OFFICER SUPPORTED HIS BELIEF BY OB SERVING AS UNDER: 9. WE FIND THAT FROM PAGES 2 TO 16, THE ASSESSING O FFICER HAS DISCUSSED THE AD-INTERIM ORDER OF THE SEBI DATED 29 .06.2015 IN ORDER NO. WTM/RKA/ISD/54/2015. REFERRING TO VARIOUS JUDI CIAL DECISIONS, THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT T HE ASSESSEE HAS INTRODUCED/CREDITED CAPITAL BY AN AMOUNT OF RS. 1,9 6,23,848/- DURING THE YEAR IN HIS BOOKS, THE SOURCE OF WHICH HE EXPLA INED AS PROCEEDS FROM THESE SHARE SALE TRANSACTIONS AND SINCE THE EX PLANATION OFFERED BY THE ASSESSEE IN RESPECT OF SOURCE OF THIS CAPITAL I NTRODUCED BEING SHARE SALE TRANSACTIONS, HAS BEEN HELD TO BE NOT SATISFAC TORY, SECTION 68 OF THE ACT IS SQUARELY APPLICABLE AND ACCORDINGLY, MAD E AN ADDITION OF RS. 2,10,23,848/- U/S 68 OF THE ACT. 5 10. THE FINDINGS OF THE ASSESSING OFFICER WERE CONF IRMED BY THE LD. CIT(A). 11. WE HAVE CAREFULLY PERUSED THE EX PARTE AD-INTER IM ORDER OF SEBI MENTIONED HEREINABOVE. WE HAVE ALSO THE BENEFIT OF SEBI ORDER NO. NO. WTM/RKA/ISD/07/2015 DATED 04.01.2016 WHICH IS T HE CORRIGENDUM TO THE ORDER DATED 29.06.2015. WE HAVE GONE THROUG H SEBI ORDER NO. WTM/RKA/ISD/163/2016 DATED 27.10.2016 AND NO. WTM/S R/SEBI/EFD- DRA2/70/09/2017 DATED 06.09.2017, ALL SUCH ORDERS A RE PART OF THE PAPER BOOK. 12. A PERUSAL OF ALL THESE ORDERS SHOWS THAT ALL TH E ORDERS ARE PRIMARILY CONCERNED WITH THE ACTIVITIES OF FOUR ENT ITIES INVOLVED IN PRE IPO ACTIVITIES, ISSUANCE OF IPO, LISTING OF IPO AND TRADING OF SHARES OF FOUR COMPANIES, NAMELY: I) ECO FRIENDLY FOOD PROCESSING LIMITED II) ESTEEM BIO ORGANIC FOOD PROCESSING LIMITED III) CHANNEL NINE ENTERTAINMENT LIMITED AND IV) HPC BIOSCIENCES LIMITED (THIS COMPANY IS IN DISPUTE IN THIS 6 APPEAL) 13. THE AD-INTERIM ORDER DATED 29.06.2015 HAS CATEG ORISED THE FOUR ENTITIES INTO THE FOLLOWING CATEGORIES: I) PREFERENTIAL ALLOTTEES II) PRE IPO TRANSFEREES III) FUNDING GROUP IV) TRADING GROUP 14. A LIST OF PREFERENTIAL ALLOTTEES IN THE SCRIP O F HPC IS EXHIBITED AT PAGES 12 TO 16 OF THE PAPER BOOK. A LIST OF PRE IPO TRANSFEREES IN THE SCRIP OF HPC IS EXHIBITED AT PAGES 17 TO 21 OF THE PAPER BOOK. A LIST OF FUNDING GROUP IS EXHIBITED AT PAGE 21 OF THE PAPER BOOK AND LIST OF TRADING GROUP IS EXHIBITED AT PAGES 22 AND 23 OF TH E PAPER BOOK. 15. ALL THE NAMES HAVE PAN AND QUANTITY BOUGHT BY T HE PERSONS. WE FIND THAT THE NAME OF THE APPELLANT IS NOT IN THE L IST MENTIONED HEREINABOVE. WE FURTHER FIND THAT SUBSEQUENT TO TH E INTERIM ORDERS, INVESTIGATION WAS CARRIED OUT TO LOOK INTO THE ROLE OF DEBARRED ENTITIES IN PRICE MANIPULATION AND IPO MANIPULATION OF THE S CRIPS [IN WHICH THE APPELLANTS NAME DOES NOT APPEAR]. VIOLATION OF PR OVISIONS OF SEBI ACT, 7 1992 AND SEBI [PROHIBITION OF FRAUDULENT AND UNFAIR TRADE PRACTICES RELATING TO SECURITIES MARKET] REGULATIONS, 2003 WE RE NOT OBSERVED IN RESPECT OF 216 ENTITIES AGAINST WHOM DIRECTIONS WER E ISSUED VIDE THE INTERIM ORDERS. LIST OF SUCH NAMES ARE EXHIBITED A T PAGES 31 TO 35 OF THE PAPER BOOK. ACCORDINGLY, THE AD-INTERIM ORDER WAS REVOKED ON THESE 216 ENTITIES. 16. THE ENTIRE ASSESSMENT ORDER IS BASED UPON THE AD-INTERIM ORDER OF THE SEBI MENTIONED ELSEWHERE WHEREIN THE APPELLA NTS NAME DOES NOT FIND PLACE. IT WOULD NOT BE OUT OF PLACE TO RE FER TO THE TWO JUDGMENTS OF THE COORDINATE BENCH IN THE CASE OF SH RI SANDEEP BHARGAVA ITA NO. 420/DEL/2019 AND M/S MAYANK JAIN [ HUF] ITA NO. 1230/DEL/2019 WHICH HAVE BEEN HEAVILY RELIED UPON B Y THE LD. DR. IN BOTH THESE CASES, THE COORDINATE BENCH HAS DECIDED THE APPEAL IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE ON F INDING THEIR NAMES IN THE LIST OF ENTITIES DEBARRED IN SEBIS ORDER. SINCE THE APPELLANTS NAME DOES NOT FIND PLACE IN THE LIST OF ENTITIES DE BARRED BY SEBI, THESE JUDGMENTS RELIED UPON BY THE LD. DR ARE CLEARLY DIS TINGUISHABLE ON FACTS. 8 17. A PERUSAL OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT THE ASSESSING OFFICER WAS CARRIED AWAY BY THE REPORT OF THE INVESTIGATION WING AND THE EXPARTE AD-INTERIM ORDER OF THE SEBI. IT CAN BE SEEN THAT THE ENTIRE ASSESSMENT ORDER HAS BEEN FRAMED BY THE ASSESSING OFFICER WITHOUT CONDUCTING ANY ENQUIRY FROM THE RELEVANT PA RTIES OR INDEPENDENT SOURCE OR EVIDENCE BUT HAS MERELY RELIE D UPON THE SEBI ORDER WITHOUT CONDUCTING ANY INDEPENDENT AND SEPARA TE ENQUIRY IN THE CASE OF THE APPELLANT. 18. IT IS PROVIDED U/S 142(2) OF THE ACT THAT FOR T HE PURPOSE OF OBTAINING FULL INFORMATION IN RESPECT OF INCOME OF LOSS OF ANY PERSON, THE ASSESSING OFFICER MAY MAKE SUCH ENQUIRY AS HE C ONSIDERS NECESSARY. 19. SIMILAR FACTS WERE CONSIDERED BY THE COORDINATE BENCH IN THE CASE OF SMT. KARUNA GARG ITA NO. 1069 & 2772/DEL/20 19, SMT BINDU GARG IN ITA NO. 1168 & 1169/DEL/2019, SMT KRISHNA D EVI IN ITA NO. 1070/DEL/2019 AND HAR DEV SAHAI GUPTA IN ITA NO. 12 64/DEL/2019. IN THESE CASES, THE QUARREL WAS IN RESPECT OF SCRIP OF M/S ESTEEM BIO ORGANIC FOOD PROCESSING LTD, WHICH IS ONE OF THE FO UR COMPANIES WHOSE NAMES ARE MENTIONED AT PARA 12 OF THIS ORDER. 9 20. IN THESE CASES ALSO SINCE THE EXPARTE INTERIM O RDER OF THE SEBI DATED 29.06.2015 HAS NAMED 239 PERSONS AND NAMES OF THE APPELLANTS DID NOT FIND PLACE IN THE SAID LISTS AND ON THE GIV EN FACTS, ALL THESE APPEALS WERE DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE AND ORDER OF THE COORDINATE BENCH HAS BEEN UPHELD BY THE HON'BLE HIGH COURT OF DELHI IN ITA NO. 125/2020, 13 0/2020 AND 131/2020 VIDE ORDER DATED 15.01.2021. THE RELEVANT FINDINGS OF THE HON'BLE HIGH COURT OF DELHI READ AS UNDER: 11. ON A PERUSAL OF THE RECORD, IT IS EASILY DISCERNIBLE THA T IN THE INSTANT CASE, THE AO HAD PROCEEDED PREDOMINANTLY ON THE BASIS OF THE ANALYSIS OF THE FINANCIALS OF M/S GOLD LINE INT ERNATIONAL FINVEST LIMITED. HIS CONCLUSION AND FINDINGS AGAINS T THE RESPONDENT ARE CHIEFLY ON THE STRENGTH OF THE ASTOUNDING 4849. 2% JUMP IN SHARE PRICES OF THE AFORESAID COMPANY WITHIN A SPAN OF TWO YEARS, WHICH IS NOT SUPPORTED BY THE FINANCIALS. ON AN ANA LYSIS OF THE DATA OBTAINED FROM THE WEBSITES, THE AO OBSERVES THAT TH E QUANTUM LEAP IN THE SHARE PRICE IS NOT JUSTIFIED; THE TRADE PATTERN OF THE AFORESAID COMPANY DID NOT MOVE ALONG WITH THE SENSE X; AND THE FINANCIALS OF THE COMPANY DID NOT SHOW ANY REASON F OR THE EXTRAORDINARY PERFORMANCE OF ITS STOCK. WE HAVE NOT HING ADVERSE TO COMMENT ON THE ABOVE ANALYSIS, BUT ARE CONCERNED WITH THE AXIOMATIC CONCLUSION DRAWN BY THE AO THAT THE RESPO NDENT HAD ENTERED INTO AN AGREEMENT TO CONVERT UNACCOUNTED MO NEY BY CLAIMING FICTITIOUS LTCG, WHICH IS EXEMPT UNDER SEC TION 10(38), IN A 10 PRE-PLANNED MANNER TO EVADE TAXES. THE AO EXTENSIVE LY RELIED UPON THE SEARCH AND SURVEY OPERATIONS CONDUCTED BY THE I NVESTIGATION WING OF THE INCOME TAX DEPARTMENT IN KOLKATA, DELHI , MUMBAI AND AHMEDABAD ON PENNY STOCKS, WHICH SETS OUT THE MODUS OPERANDI ADOPTED IN THE BUSINESS OF PROVIDING ENTRIES OF BOG US LTCG. HOWEVER, THE RELIANCE PLACED ON THE REPORT, WITHOUT FURTHER CORROBORATION ON THE BASIS OF COGENT MATERIAL, DOES NOT JUSTIFY HIS CONCLUSION THAT THE TRANSACTION IS BOGUS, SHAM AND NOTHING OTHER THAN A RACKET OF ACCOMMODATION ENTRIES. WE DO NOTIC E THAT THE AO MADE AN ATTEMPT TO DELVE INTO THE QUESTION OF INFUS ION OF RESPONDENTS UNACCOUNTED MONEY, BUT HE DID NOT DIG DEEPER. NOTICES ISSUED UNDER SECTIONS 133(6)/131 OF THE ACT WERE ISSUED TO M/S GOLD LINE INTERNATIONAL FINVEST LIMITED, BUT NOTHING EMERGED FROM THIS EFFORT. THE PAYMENT FOR THE SHARE S IN QUESTION WAS MADE BY SH. SALASAR TRADING COMPANY. NOTICE WAS ISSUED TO THIS ENTITY AS WELL, BUT WHEN THE NOTICES WERE RETU RNED UNSERVED, THE AO DID NOT TAKE THE MATTER ANY FURTHER. HE THER EAFTER SIMPLY PROCEEDED ON THE BASIS OF THE FINANCIALS OF THE COM PANY TO COME TO THE CONCLUSION THAT THE TRANSACTIONS WERE ACCOMMODA TION ENTRIES, AND THUS, FICTITIOUS. THE CONCLUSION DRAWN BY THE A O, THAT THERE WAS AN AGREEMENT TO CONVERT UNACCOUNTED MONEY BY TA KING FICTITIOUS LTCG IN A PRE-PLANNED MANNER, IS THEREFO RE ENTIRELY UNSUPPORTED BY ANY MATERIAL ON RECORD. THIS FINDING IS THUS PURELY AN ASSUMPTION BASED ON CONJECTURE MADE BY THE AO. T HIS FLAWED APPROACH FORMS THE REASON FOR THE LEARNED ITAT TO I NTERFERE WITH THE FINDINGS OF THE LOWER TAX AUTHORITIES. THE LEAR NED ITAT AFTER CONSIDERING THE ENTIRE CONSPECTUS OF CASE AND THE E VIDENCE BROUGHT ON RECORD, HELD THAT THE RESPONDENT HAD SUCCESSFULL Y DISCHARGED 11 THE INITIAL ONUS CAST UPON IT UNDER THE PROVISIONS OF SECTION 68 OF THE ACT. IT IS RECORDED THAT THERE IS NO DISPUTE THAT THE SHARES OF THE TWO COMPANIES WERE PURCHASED ONLINE, THE PAY MENTS HAVE BEEN MADE THROUGH BANKING CHANNEL, AND THE SHARES W ERE DEMATERIALIZED AND THE SALES HAVE BEEN ROUTED FROM DE-MAT ACCOUNT AND THE CONSIDERATION HAS BEEN RECEIVED THR OUGH BANKING CHANNELS . THE ABOVE NOTED FACTORS, INCLUDING THE DEFICIENT ENQUIRY CONDUCTED BY THE AO AND THE LACK OF ANY INDEPENDENT SOURCE OR EVIDENCE TO SHOW THAT THERE WAS AN AGREEMENT BETWEE N THE RESPONDENT AND ANY OTHER PARTY, PREVAILED UPON THE ITAT TO TAKE A DIFFERENT VIEW. BEFORE US, MR. HOSSAIN HAS NOT BEEN ABLE TO POINT OUT ANY EVIDENCE WHATSOEVER TO ALLEGE THAT MONEY CH ANGED HANDS BETWEEN THE RESPONDENT AND THE BROKER OR ANY OTHER PERSON, OR FURTHER THAT SOME PERSON PROVIDED THE ENTRY TO CONV ERT UNACCOUNTED MONEY FOR GETTING BENEFIT OF LTCG, AS A LLEGED. IN THE ABSENCE OF ANY SUCH MATERIAL THAT COULD SUPPORT THE CASE PUT FORTH BY THE APPELLANT, THE ADDITIONS CANNOT BE SUSTAINED . 12. MR. HOSSAINS SUBMISSIONS RELATING TO THE START LING SPIKE IN THE SHARE PRICE AND OTHER FACTORS MAY BE ENOUGH TO SHOW CIRCUMSTANCES THAT MIGHT CREATE SUSPICION; HOWEVER THE COURT HAS TO DECIDE AN ISSUE ON THE BASIS OF EVIDENCE AND PRO OF, AND NOT ON SUSPICION ALONE. THE THEORY OF HUMAN BEHAVIOR AND P REPONDERANCE OF PROBABILITIES CANNOT BE CITED AS A BASIS TO TURN A BLIND EYE TO THE EVIDENCE PRODUCED BY THE RESPONDENT. WITH REGARD TO THE CLAIM THAT OBSERVATIONS MADE BY THE CIT(A) WERE IN CONFLI CT WITH THE IMPUGNED ORDER, WE MAY ONLY NOTE THAT THE SAID OBSE RVATIONS ARE GENERAL IN NATURE AND LATER IN THE ORDER, THE CIT(A ) ITSELF NOTES 12 THAT THE BROKER DID NOT RESPOND TO THE NOTICES. BE THAT AS IT MAY, THE CIT(A) HAS ONLY APPROVED THE ORDER OF THE AO, F OLLOWING THE SAME REASONING, AND RELYING UPON THE REPORT OF THE INVESTIGATION WING. LASTLY, RELIANCE PLACED BY THE REVENUE ON SUMAN PODDAR V. ITO ( SUPRA ) AND SUMATI DAYAL V. CIT ( SUPRA) IS OF NO ASSISTANCE. UPON EXAMINING THE JUDGMENT OF SUMAN PODDAR ( SUPRA ) AT LENGTH, WE FIND THAT THE DECISION THEREIN WAS ARRIVED AT IN LIGHT OF THE PECULIAR FACTS AND CIRCUMSTANCES DEMONSTRATED BEFOR E THE ITAT AND THE COURT, SUCH AS, INTER ALIA, LACK OF EVIDENCE PRODUCED BY THE ASSESSEE THEREIN TO SHOW ACTUAL SALE OF SHARES IN T HAT CASE. ON SUCH BASIS, THE ITAT HAD RETURNED THE FINDING OF FA CT AGAINST THE ASSESSEE, HOLDING THAT THE GENUINENESS OF SHARE TRA NSACTION WAS NOT ESTABLISHED BY HIM. HOWEVER, THIS IS QUITE DIFF ERENT FROM THE FACTUAL MATRIX AT HAND. SIMILARLY, THE CASE OF SUMATI DAYAL V. CIT ( SUPRA ) TOO TURNS ON ITS OWN SPECIFIC FACTS. THE ABOVE-ST ATED CASES, THUS, ARE OF NO ASSISTANCE TO THE CASE SOUGHT TO BE CANVASSED BY THE REVENUE. 13. THE LEARNED ITAT, BEING THE LAST FACT-FINDING A UTHORITY, ON THE BASIS OF THE EVIDENCE BROUGHT ON RECORD, HAS RIGHTL Y COME TO THE CONCLUSION THAT THE LOWER TAX AUTHORITIES ARE NOT A BLE TO SUSTAIN THE ADDITION WITHOUT ANY COGENT MATERIAL ON RECORD. WE THUS FIND NO PERVERSITY IN THE IMPUGNED ORDER. 14. IN THIS VIEW OF THE MATTER, NO QUESTION OF LAW, MUCH LESS A SUBSTANTIAL QUESTION OF LAW ARISES FOR OUR CONSIDER ATION. 13 21. IN OUR CONSIDERED VIEW, WHETHER THE ASSESSEE HA S DISCHARGED HIS ONUS CAST UPON HIM BY PROVISIONS OF SECTION 68 OF T HE ACT OR NOT IS PURELY A QUESTION OF FACT AND CONSIDERING THE VORTE X OF EVIDENCES, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS SU CCESSFULLY DISCHARGED THE ONUS CAST UPON HIM BY PROVISIONS OF SECTION 68 OF THE ACT. AS MENTIONED ELSEWHERE, THE DISCHARGE OF ONUS IS PURELY A QUESTION OF FACT, THE JUDICIAL DECISIONS RELIED UPO N BY THE LD. DR WOULD DO NO GOOD ON THE PECULIAR PLETHORA OF EVIDENCES IN RESPECT OF FACTS IN HAND AND HENCE THE JUDICIAL DECISIONS RELIED UPON B Y BOTH THE SIDES, THOUGH PERUSED, BUT NOT CONSIDERED ON THE FACTS OF THE CASE IN HAND EXCEPT THE DECISION OF THE COORDINATE BENCH DISCUSS ED ELSEWHERE BECAUSE THE SAME EXPARTE AD-INTERIM ORDER OF SEBI W AS CONSIDERED AND FACTS ARE MUTATIS MUTANDIS SAME. WE, ACCORDINGLY, DIRECT THE ASSESSING OFFICER TO ACCEPT THE LONG TERM CAPITAL G AIN DECLARED AS SUCH AND DELETE THE ADDITION OF RS. 2,10,23,848/-. 22. BEFORE PARTING, THE LD. DR HAS SUPPORTED HIS SU BMISSIONS BY SUPPLYING PRINT OUTS OF THE METROPOLITAN STOCK EXCH ANGE AND THE ECONOMIC TIMES MARKETS, WHICH WE FIND THAT HE MUST HAVE SEARCHED FROM GOOGLE NETWORK WHEREIN THE LD. DR POINTED OUT THAT SEBI NOW 14 VIDE ORDER DATED WTM/SM/VD/D3/9896/2020-21 DATED 22 .12.2020 HAS ISSUED THE FOLLOWING DIRECTIONS: 'NOTICEE NOS. 2 AND 3 (PROMOTERS OF THE COMPANY) AR E DIRECTED TO MAKE A PUBLIC OFFER THROUGH A MERCHANT BANKER TO AC QUIRE SHARES OF THE COMPANY FROM PUBLIC SHAREHOLDERS BY PAYING T HEM THE VALUE DETERMINED BY THE VALUER IN THE MANNER PRESCRIBED I N REGULATION 23 OF THE SEBI (DELISTING OF EQUITY SHARES) REGULATION S, 2009 AND ACQUIRE THE SHARES OFFERED IN RESPONSE TO THE PUBLI C OFFER, WITHIN THREE MONTHS FROM THE DATE OF THIS ORDER. II. BSE TO FACILITATE VALUATION OF SHARES TO BE PURCHAS ED AS DIRECTED AT (I) ABOVE, AND COMPULSORILY DELIST THE COMPANY, IF THE PUBLIC SHAREHOLDING REDUCES BELOW THE MINIMUM LEVEL IN VIE W OF AFORESAID PURCHASE. III. THE NOTICEE NO. 1 IS HEREBY RESTRAINED FROM ACCESSI NG THE SECURITIES MARKET BY ISSUING PROSPECTUS, OFFER DOCU MENT OR ADVERTISEMENT SOLICITING MONEY FROM THE PUBLIC IN A NY MANNER FOR A PERIOD OF 8 YEARS. IV. NOTICEE NO. 2 AND 3 ARE HEREBY RESTRAINED FROM HOLD ING POST OF DIRECTOR, ANY MANAGERIAL POSITION OR ASSOCIATING TH EMSELVES IN ANY CAPACITY WITH ANY LISTED PUBLIC COMPANY AND WITH AN Y PUBLIC COMPANY WHICH INTENDS TO RAISE MONEY FROM THE PUBLIC, OR WI TH ANY INTERMEDIARY REGISTERED WITH SEBI FOR A PERIOD OF 3 YEARS. 15 V. THE NOTICEES, AS MENTIONED BELOW ARE HEREBY RESTRAI NED AND PROHIBITED FROM BUYING, SELLING OR OTHERWISE DEALIN G IN THE SECURITIES MARKET, DIRECTLY OR INDIRECTLY IN ANY MA NNER WHATSOEVER MANNER, FOR THE PERIOD SPECIFIED IN THEIR RESPECTIV E COLUMNS: S R. N NAME OF THE NOTICEE PAN DEBARRED VIDE INTERIM PERIOD OF DEBARMENT 2 SHRI. TARUN CHAUHAN AGXPC3049G YES TILL DATE OF THIS ORDER 3 MS. MADHU ANAND AXTPA8813F YES TILL DATE OF THIS ORDER 4 GOLDLINE INTERNATIONAL FINVEST LTD. AACCG6377M YES TILL DATE OF THIS ORDER 5 SHRI. MADHUKAR DUBEY & ITS PROPRIETORSHIP FIRM VIZ. N V SALES CORPORATION, MAGNUM INDUSTRIAL ALLIANCE TRADERS AIJPD7329J YES TILL DATE OF THIS ORDER 6 SHRI. SATENDRA KUMAR & ITS PROPRIETORSHIP FIRM VIZ. NISHA TRADERS AWWPK8525E YES TILL DATE OF THIS ORDER 7 AVISHA CREDIT CAPITAL PVT. LTD AAACA5715D YES TILL DATE OF THIS ORDER 8 SHRI. SUMIT KUMAR & ITS PROPRIETORSHIP FIRM VIZ. DURGA PRASAD & CO. ARUPK1589P YES TILL DATE OF THIS ORDER 9 SHRI. RAJ KUMAR & ITS PROPRIETORSHIP FIRM VIZ. BRIGHT SECURITIES BNBPK2681L NO 1 YEAR 10 SHRI. PRAKASH GUPTA & ITS PROPRIETORSHIP FIRM VIZ. SHIV TRADERS ARVPG7849R YES TILL DATE OF THIS ORDER 11 AMS POWERTRONIC PVT. LTD AAECA8718H YES TILL DATE OF THIS ORDER SR. NO. NAME OF THE NOTICEE PAN DEBARRED VIDE INTERIM ORDER PERIOD OF DEBARMENT 1 HPC BIOSCIENCES LTD AABCH6762Q YES TILL DATE OF THIS ORDER 16 23. THIS SEBI ORDER IS DATED 22.12.2020 WHEREAS THE TRANSACTIONS WHICH HAVE BEEN CONSIDERED IN THIS APPEAL TOOK PLAC E IN F.Y. 2014-15 AND THEREFORE, RESTRAIN AFTER A GAP OF MORE THAN 5 YEARS WOULD DO NO GOOD TO THE REVENUE. THIS ORDER HAS RESTRAINED NAM ED NOTICEES FROM ACCESSING SECURITY MARKET BY ISSUING PROSPECTUS, OF FER DOCUMENT OR ADVERTISEMENT SOLICITING MONEY FROM THE PUBLIC IN A NY MANNER FOR A PERIOD OF 8 YEARS. OBVIOUSLY, THIS RESTRAINT IS PR OSPECTIVE. 24. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 8142/DEL/2018 IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 19.03 .2021. SD/- SD/- (BHAVNESH SAINI) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19 TH MARCH, 2021. VL/ 17 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT ASST. REGISTRAR 4. CIT(A) ITAT, NEW DELHI 5. DR 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.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE 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 REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER