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2019 (10) TMI 1387 - ITAT DELHIReopening of assessment u/s 147 - bogus LTCG - Addition u/s 68 - as argued AO has not disposed off the objections filed in response to notice u/s.148 - addition u/s 69C on the ground that cash commission must have been paid @ 1% on the alleged bogus Long Term Capital Gain - HELD THAT:- The assessee here in this case was denied remedy to challenge the action u/s 147/148, had the objections been disposed off adversely to the assessee. The Hon’ble Jurisdictional High Court in the case of PCIT vs. Tupperware India [2015 (8) TMI 517 - DELHI HIGH COURT]as noted above has clearly opined that such a failure to comply the law laid down by the Hon’ble Supreme Court should have resulted in quashing of the reassessment. Accordingly, on this ground alone the impugned reassessment order is liable to be quashed and at this stage we are not inclined to set aside this issue to Assessing Officer for deciding this matter when substantial time has lapsed and two stages have been crossed. Be that as may be, we are proceeding to decide the issue on merits as argued by the parties. Addition u/s 68 - As pointed out that the rise was beyond the cap laid down by the SEBI, because the price of the scrip cannot rise beyond the cap prescribed by the SEBI. If the shares have been purchased and sold from the stock exchange on a quoted price with proper contract number, trade time and after paying STT, then it is very difficult to assume that the sale proceeds received from sale of such shares is bogus, especially when purchase of shares are not in dispute. This inter alia means assessee was in possession of shares which were also dematerialised. To prove that such a transaction was in the nature of bogus or colourable transaction, there has to be some inquiry or material to nail the assessee that she was some kind of a beneficiary in some accommodation entry operation. No defect has been pointed out in the documents submitted by the assessee nor has the broker of the assessee been inquired upon. Simply relying upon the general modus operandi and statement of some brokers recorded by the Kolkata Investigation Wing does not mean that all the transactions undertaken of the scrip M/s. CCL International Ltd. through the country by millions of subscribers are bogus. Thus, in absence of any material or evidence against the assessee, we do not find any reason as to why the claim of Long Term Capital Gain from sale of such share should be denied. Consequently, the addition on account of commission is also deleted - Decided in favour of assessee.
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