TMI Blog2019 (1) TMI 1622X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T.A.No.659/Chny/2018, I.T.A.No.660/Chny/2018 - - - Dated:- 9-1-2019 - Shri George Mathan, Judicial Member And Shri S. Jayaraman, Accountant Member For the Appellant : Mr.D.Anand,Advocate For the Respondent : Mr.AR.V.Sreenivasan,JCIT,D.R ORDER PER GEORGE MATHAN, JUDICIAL MEMBER These two appeals are filed by the different assessees against the separate order of the Commissioner of Income-tax (Appeals)-10, Chennai in ITA No.178/16-17/CIT(A)-10 dated 30.01.2018 for the assessment year 2014-15 in respect of Shri Sunil Kumar Lalwani and in ITA No.179/16-17/CIT(A)-10 dated 22.12.2017 for the assessment year 2014-15 in respect of Shri Aashesh Kumar Lalwani. Since the issues raised in these two apples are interlinked, these two appeals are disposed of by this common order. 2. Mr.D.Anand represented on behalf of the Assessee, and Mr.AR.V.Sreenivasan represented on behalf of the Revenue. 3. It was submitted by ld.A.R that the issue in both the appeals are against the action of ld.CIT(A) in confirming the disallowance of exemptions claimed u/s.10(38) of the Act. The ld.A.R placed before us the written submissions in these appeals as follows:- 1. Off M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht create suspicion because assessments cannot be made on the basis of suspicion. 11. The AC was not justified in taking an adverse view against the Assessee on the ground of abnormal price rise of the shares and price rigging. There is no allegation submitted by the AO to prove that there is any allegation in orders of SEBI and/or the enquiry report of the Investigation Wing to the effect that the Assessee and/or his broker was a party to the price rigging or manipulation of price in BSE. 12. The id AO was not justified in disallowing the Assessee s claim of exemption under section 10(38) of the Act by concluding that the transactions of the Assessee resulting in LTCG on sale of shares of M/s were bogus by merely relying on a General investigation carried on by the Investigation Wing wherein these persons accepted to have provided accommodation entries of various natures including LTCG to different persons other than the assessee. Assessee places reliance on the judgment of the Delhi High Court in the case of PCIT Vs Laxman Industrial Resources (Copy attached) 13. The Assessee further relies on the Judgment of The Apex Court in the case of TEJUA ROHITKUMAR KAPADIA i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the statement remains mere information and such information cannot be foundation for assessment. 10. Admittedly, the assessee has claimed to have purchased 15000 shares from M/s.BPL @ ₹ 20/- per share totaling into ₹ 3,00,000/-. The assessee claims to have paid cash for the purchase of these shares. The primary question would be as to where the purchase was done? If the purchase has been done in Kolkata, how was the cash transferred? When did the assessee received the share certificates and the share transfer forms? How did the assessee overcome the provisions of Sec.40A(3)? Was there adequate cash availability in the books of the assessee on 24.04.2008? Did 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the assessee in so 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. It was a submission that on identical directions, the issue in these appeals can also be restored to the file of ld. Assessing Officer. 5. Per contra, ld.A.R submitted that the Hon ble Delhi High Court in the case of Pr.CIT Vs. M/s.Laxman Industrial Resources Ltd., in ITA No.169/2017, C.M.APPL.7385/2017 vide order dated 14.03.2017 has held the issue in favour of the assessee. The ld.A.R also placed before us the decision of the Co-ordinate Bench of this Tribunal in the case of Shri Aravind Nandlal Khatri Vs. Income Tax Office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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