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2023 (12) TMI 758 - ITAT KOLKATAAssessment u/s 153A - disallowance of bogus Long Term Capital Gain - whether any incriminating documents is available with department to make the addition? - as per DR entry operator and the directors of shell companies themselves have accepted under Oath that they are involved in providing accommodation entries during various departmental investigations which is incriminating in itself - HELD THAT:- Ideally when we explore the scope of section 153A and addition is not sustainable on legal ground, then, the inquiry on factual aspect is not required to be made. In case, a specific ground is being raised in an appeal or C.O. that has to be adjudicated. Earlier this approach was being taken on the ground that Higher Appellate Authority may concur or not with the view of the ITAT on the legal ground and in that situation, adjudication of the issue on merit would be required. But now the Hon’ble Supreme Court has silenced the controversy in the case of PCIT vs. Abhisar Buildwell Pvt. Limited [2023 (4) TMI 1056 - SUPREME COURT] and there is no scope of disagreement on the scope of section 153A in further appeal unless Hon’ble Supreme Court took a different view later on. In five scrutiny cases of the sale of shares, i.e. TFCIL, gain earned by the assessee was accepted as a genuine by the Department itself. Out of these five cases, two are in the re-assessment u/s 147 and these assessment orders have been framed after more than one year of the search. Therefore, Department was not doubting the genuineness of the transactions. It is also obsesrved that apart from Hon’ble Calcutta High Court in the case of Swati Bajaj [2022 (6) TMI 670 - CALCUTTA HIGH COURT] the other Hon’ble High Courts have accepted the claim of these alleged bogus long-term capital gains and assessee drew our attention towards the decision of Smt. Pushpa Malpani [2010 (11) TMI 799 - RAJASTHAN HIGH COURT], Krishna Devi [2021 (1) TMI 1008 - DELHI HIGH COURT] The ld. Counsel for the assessee has also drew our attention on the tabulated details submitted in his submission and pointed out how certain companies have performed so well and the change was 449% to 312%, whereas certain companies has performed very badly. Therefore, we have made analysis of these break-up in the light of the large number of decisions, namely 21 in number compiled in the written submission. We are of the view that the Department was not possessing any details, which authorize it to doubt the claim made by the assessee. Therefore, even otherwise on merit also, no addition is sustainable. - Decided in favour of assessee.
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