TMI Blog2019 (2) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the shares as unexplained cash credit to be added under deeming provisions of section 68. There is no finding or any whisper in the impugned orders that some unaccounted money has been routed through some accommodation entry provider for getting the bogus long-term capital gain. When there is a concurrent finding on similar set of facts in the case of assessee’s husband, then as a matter of precedent same needs to be followed. In any case, independently also in view of the material facts on record no reason to sustain the action of the AO without any contrary material brought on record by the AO to hold that the said transaction is not genuine. AO u/s 68 is directed to be deleted and assessee’s claim for exemption u/s 10(38) on long term capital gain is allowed. - Decided in favour of assessee. - I.T.A. No.5025/DEL/2018 - - - Dated:- 8-2-2019 - SHRI AMIT SHUKLA, JUDICIAL MEMBER For The Appellant : Shri Manish Kumar Jain, CA. For The Respondent : Shri S.L. Anuragi, Sr.D.R. ORDER The aforesaid appeal has been filed by the assessee against the impugned order dated 18th May, 2018 passed by Ld. CIT(Appeals) Meerut for the quantum of assessment passed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... queries (as incorporated in pages 6 and 8 of the assessment order) and in compliance thereof, assessee submitted as under: - 1. As far as purchase of shares if concerned, it is stated that the same were purchased directly from the company M/s ALPS Motor Finance Ltd. Photocopy of letter of allotment and copy of acknowledgement for receiving the cheque no-545679 dated 03.07.2013 by the company, for the allotment of 125000 equity shares of ₹ 10/- each for your kind consideration. 2. In support of the genuineness of a transaction, we have already submitted the following papers /documents and explanations to your kind honour: - (i) Contract Notes for the sale of shares (two) (ii) Copy of bill of broker through the shares have been sold. (iii) Transaction and holding statements. (iv) Statement of Account from the broker M/s Ashlar Securities Pvt. Ltd. certifying the sale of shares. (v) Payment of sates consideration received by the assessee through account payee cheques. (vi) STT has been duty paid on the sale transaction in the sum of ₹ 19240/- (vii) Assessee s Demat Account reflecting the inflow of shares in Demat account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old on the online platform of the stock exchange and each trade of sale of shares were having unique trade number and trade time. Transactions due to the high rise in the stock price and for that the assessee cannot be blamed unless there is any material /evidences to prove that the assessee or any one on his behalf has rigged or manipulated the stock price. It should be noted that the stock exchange of SEBI are the statutory authority appointed by the Government of India to ensure that there is no stock rigging or manipulation. There is no evidence on record to show that Investigation agencies have alleged any stock manipulation against the assessee in question. Third party statement (As provided by you of Sh. Sanjay Vohra) also not includes the name of the assessee. You are prayed to give us opportunity to cross examine the statement of Shri Sanjay Vohra. In the absence of any relevant evidences it cannot be said that merely on The basis of third party statement, the assessee is to be blamed for bogus transactions. It is pertinent to note that the assessee has purchased the stocks directly from the company and thereafter the assessee has sold the shares through the registered sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including judgement of CIT vs Durga Prasad More, 82 ITR 540 and Sumati Dayal vs. CIT, (1995) 214 ITR 801 (SC) and catena of other judgements. 6. Ld. CIT (A) after incorporating the entire assessment order and reiterating the same reasoning adopted by the Assessing Officer, held that not only the purchase of share is questionable but also the long-term capital gain claimed by the assessee is not genuine and same has rightly been added u/s 68. 7. I have heard the rival submissions, perused the relevant findings given in the impugned orders as well as materials and evidences referred to at the time of hearing. The assessee had purchased 12500 equity shares of ₹ 10/- each of ALP Motor Finance Ltd. for sum of ₹ 1,25,000/-, directly from ALPS Motor Finance Ltd. The shares were purchased vide cheque no.545679 dated 3rd July, 2013 and the said shares were allotted vide certificate no. 3075096, bearing distinctive nos. 5583421 5595920. This is evident from pages 70 to 71 of the paper book, which is acknowledgement slip for purchase and letter of allotment issued by ALPS Motor Finance Ltd. Thereafter, the assessee got the shares dematerialized in his Demat account with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form 2- along with name of allotees of shares. IX. M/s ALPS MOTOR FINANCE LTD divided the share into face value of ₹ 1.00 on 30.06.2014. This division of shares also reported to Registrar of Companies, Ministry of Corporate affairs, Govt, of India. In form -7. 10. The case of the Revenue, it is that one person, Shri Sanjay Vohra who was one of the employees of some stock broker company, had stated that scrips of M/s. ALPS Motor Finance Ltd. was utilised for providing bogus long-term capital gain. Entirely based on this statement, the assessee s long-term capital gain has been disbelieved and has been added u/s 68. Such a statement, first of all, has no direct or indirect connection with the assessee nor there is any reference that assessee was any kind of beneficiary of accommodation entry by any entry operator. Otherwise also, such a statement cannot be the sole basis for disbelieving the transaction of the assessee for the reason that, neither any cross-examination has been allowed by the Department nor there is any conclusive averment that all the trade of the scrips of ALPS Motor Finance Ltd. were manipulated for bogus long-term capital gain. There is no info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any whisper in the impugned orders that some unaccounted money has been routed through some accommodation entry provider for getting the bogus long-term capital gain. 12. One very important fact brought on record by the ld. counsel is that, in the case of assessee s husband, Shri Vishal Kumar Vijay, this Tribunal on precisely similar facts and scrip and identical reasoning given by the Assessing Officer and ld. CIT (A) had deleted the said addition, vide order dated 28th November, 2018 passed in ITA No.1714/Del/2018. The Tribunal after examining the transaction statement of stock broker, contract note for sale of shares, transactions statement of Demat account, statement of account from the brokers, and also most of other documentary evidences had held that the transaction was genuine. The Tribunal had also rejected the reliance placed by the AO on the statement of Shri Sanjay Vohra holding that no opportunity to cross-examination was given which is in violation of the principle and ratio laid down by the Hon'ble Supreme Court in the case of Andaman Timbers Industries Ltd. vs Commissioner of Central Excise, in Civil Appeal No.4228 of 2016. Thus, when there is a concurrent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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