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2023 (2) TMI 805 - ITAT DELHIAddition u/s 68 - Bogus LTCG - difference between transactions - New objection raised by assessee under Rule 27 of the Rules - AO alleged that the assessee has indulged in a dubious share transactions with intent to account for the undisclosed income in the garb of Long Term Capital Gains - As per assessee AO could not have invoked Section 68 in the absence of books of account - CIT-A deleted addition - HELD THAT:- It is wholly inconceivable to preordain a transaction of purchase and sale involving a gap of 15-25 years to record some unaccounted income. It defies one’s imagination to think so. AO appears to have mechanically applied the findings of investigation report and imputed motive of price abuse in EFTL stock on the assessee in a hawkish manner without taking note of the peculiar fact of acquisition of shares decades ago and continually held thereafter. CIT(A), on the other hand, has recognized such overwhelming fact of long holding period and rightly cancelled the untenable additions. It is a classic case of assessment framed on impressions and perceptions rather than on glaring facts. Needless to say, the peculiarities and nuances of each case need to be seen in perspective. The overwhelming factor of extra-ordinary period of holding of shares prior to sale transcends all other considerations and exonerates the Assessee from any kind of impropriety. CIT(A), to our mind, has correctly approached the issue and recognized the difference between transactions which are pretense and the transactions which are real and rightly reversed the unsubstantiated additions. We thus see no reason to interfere with the conclusion drawn by the CIT(A). Objections raised by the assessee in terms of application filed under the shelter of Rule 27 of the Income Tax (Appellate Tribunal) Rules 1963 - In the instant case, the assessee has neither filed any cross-appeal nor cross-objection before ITAT in the Revenue appeal. The Assessee had not taken such ground earlier before CIT(A) either, to enable him to render its decision such point. In the absence of any ground on the point, the CIT(A) had thus no occasion to adjudicate the issue now raised before ITAT under Rule 27. The objections have been newly raised for the first time before ITAT taking shelter of Rule 27 of ITAT Rules. The language of Rule 27 is absolute and measured. Patently, the prerequisites of Rule 27 are not fulfilled in the instant case. There must exist a ground decided against the assessee by the CITA) to invoke Rule 27 as an adjunct to Revenue appeal. Such vital condition is not found to be met. In the factual matrix, the legislative fiat of Rule 27 does not permit the ITAT to entertain the impugned application moved by respondent assessee to exercise right under Rule 27 to defend the order of CITA). The judgment rendered in Sanjay Sawhney [2020 (5) TMI 441 - DELHI HIGH COURT] is premised upon altogether different facts. Hence, we decline to entertain the altogether new objection raised by the respondent assessee under Rule 27 of the Rules. Consequently, the plea raised on merits by the Assessee fades into insignificance. The impugned application filed under Rule 27 is thus rejected. Appeal of the Revenue is dismissed.
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