TMI Blog2018 (6) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... r Kayan also allegedly seems to have provided the assessee’s name and PAN as one of the beneficiaries. However, this statement given by Shri Ashok Kumar Kayan cannot be the foundation for the purpose of assessment in so far as Shri Ashok Kumar Kayan has not been provided to the assessee for cross-examination. In the absence of opportunity of cross-examination, the statement remains mere information and such information cannot be foundation for assessment. A perusal of the Assessment Order at Para No.7.1 shows that in the Written Submissions, the assessee states that he has purchased 15000 shares of M/s.BPL from M/s.ABPL, Kolkata. However, in Para No.8.3, it is mentioned that the assessee in good faith has purchased the shares of M/s.B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Mr.N.Madhavan, ACIT, represented on behalf of the Revenue and Ms.Sushma Harini.A, Adv., represented on behalf of the assessee. 3. As both the appeals are related to the same assessee and are on identical issues, the same are being disposed off by this common order. 4. In the assessee s appeal, the assessee has raised the following grounds: 1. The order of the Ld. CIT(A), is erroneous, opposed to law and facts and liable to be cancelled in full. 2.1 The CIT(A) erred in upholding the jurisdiction of the AO in re-opening the assessment u/s.147, in the absence of any tangible material brought on record to show escapement of taxable income. 2.2 The CIT(A) failed to note that the AO has not provided the Appellant reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Long Term Capital Gains in respect of the sale of the shares of M/s.Bakra Pratisthan Ltd., (in short M/s.BPL ) to an extent of ₹ 52,87,500/- for both the years together with break-up being ₹ 35,25,000/- for the AY 2010-11 and ₹ 17,62,500/- for the AY 2011- 12. It was a submission that the assessee had purchased 15000 shares of M/s.BPL @ ₹ 20/- per share from M/s.Alishan Binimay Pvt. Ltd., (in short M/s.ABPL ), Kolkata, for a consideration of ₹ 3.00 lakhs on 24.04.2008. The shares were demated with M/s.Stock Holding Corporation of India Ltd., and sold through Shri Ashok Kumar Kayan, Stock Broker, on various dates and the sale proceeds credited into the bank account. On being questioned, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the AO the Ld.CIT(A). It was submitted by the Ld.DR that the Ld.CIT(A) has also enhanced the assessment in so far as the entire sale proceeds of M/s.BPL was treated as the income of the assessee. It was a submission that in the statement recorded from Shri Ashok Kumar Kayan, it has been admitted by him that he was providing bogus Long Term Capital Gains entries to interested persons and the assessee s name had been specifically identified along with his PAN as one of the beneficiaries to the bogus transaction. It was a submission that the order of the Ld.CIT(A) the AO was liable to be sustained. 8. We have considered the rival submissions. 9. A perusal of the facts in the present case admittedly given room for suspici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id the assessee travelled to Kolkata? How was the transaction done? Who applied for the demating of the shares? When were they demated? When were the shares transferred to the demat account of the assessee? To whom were the shares sold during the Assessment Years 2010-11 2011-12? When were the cheques received by the assessee? From whom did the assessee received the cheques? Was there any cash deposit immediately prior to the issuing of the cheque from the bank account of the purchaser of the shares of the assessee? 11. A perusal of the Assessment Order at Para No.7.1 shows that in the Written Submissions, the assessee states that he has purchased 15000 shares of M/s.BPL from M/s.ABPL, Kolkata. However, in Para No.8.3, it is mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo years. This would clearly be a case where the share value of the company was hitting the circuit breaker of the stock exchange on a daily basis and obviously it would have drawn attention. This being so, as the facts are not coming out of the Assessment Order nor the order of the Ld.CIT(A) nor from the side of the assessee, we are of the view that the issues in this appeal must be restored to the file of the AO for re-adjudication after granting the assessee adequate opportunity to substantiate its case and we do so. 12. The statement recorded by the Revenue from Shri Ashok Kumar Kayan cannot be used as an evidence against the assessee in so far as the statement has not been given to the assessee nor has Shri Ashok Kumar Kayan been ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
