TMI Blog2018 (11) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion that the matter requires a fresh look by the AO. Set aside the orders of the lower authorities and remit the question regarding genuineness of the claim of long term capital gains from alleged sale of shares of M/s.Lifeline Drugs & Pharma Ltd., back to the AO for consideration afresh in accordance with law. Assessee has to be given all records relied on by the ld. Assessing Officer so that it can offer its explanation. AO is also to keep in mind the spirit of the direction given by the Tribunal in the case of Heerachand Kanunga [2018 (6) TMI 1329 - ITAT CHENNAI] while coming to a conclusion. - Decided in favour of assessee for statistical purpose. - I.T.A. No.1264/CHNY/2018 - - - Dated:- 15-10-2018 - Shri Abraham P. George, Accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying on a report of Directorate of Income Tax (Investigation) Kolkata and Delhi which apparently mentioned that M/s.Lifeline Drugs Pharma Ltd., was a penny stock company and statements of one Shri Pravin Agarwal and one Shri Pawan Kalyan. Contention of the ld. Authorised Representative was that purchase of the shares was genuine though it was done off market. As per the ld. Authorised Representative, sale of these shares was made through recognized stock exchange and ought not have been disbelieved. All receipts, as pr the ld. Authorised Representative were through banking channels. Relying on the decision of Co-ordinate Bench in the cases of Vimalchand Gulabchand vs. ITO, Praveen Chand vs. ITO, Gatraj Jain Sons (HUF) vs. ITO and Mahen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usal of the facts in the present case admittedly given room for suspicion. However, assessments are not to be done on the basis of mere suspicion. It has to be supported by facts and the facts are unfortunately not forthcoming in the Assessment Order, in the order of the Ld.CIT(A) nor from the side of the assessee. The main foundation of the assessment in the present case is the statement of one Shri Ashok Kumar Kayan who has admitted to have provided bogus Long Term Capital Gains to his clients. The said Shri Ashok Kumar 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.BPL from a sub-broker in his friends circle. What is the true nature of the transaction? From whom did the assessee actually purchase the shares? Did the assessee take possession of the shares in its physical form? In Para No.8.1 of the Assessment Order, it is mentioned that the assessee is an investor and has been regularly trading in shares. If this is so, does the demat account show such transactions being done by the assessee or is this the only one of transaction. Thus, clearly the facts required for adjudicating the appeals are not forthcoming. There is no evidence whatsoever to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the statement has not been given to the assessee nor has Shri Ashok Kumar Kayan been provided to the assessee for cross-examination. However, the assessee shall prove the transaction of the Long Term Capital Gains in respect of which the assessee has claimed the exemption u/s.10(38) by providing all such evidences as required by the AO to substantiate the claim as also by producing the persons through whom the assessee has undertaken the transaction of the purchase and sale of the shares which would include the sub-broker, friend and the broker through whom the transaction has been done, before the AO for examination . 6. Fact situation in the case before me in my opinion is similar to the one decided by the Co-ordinate Bench. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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