TMI Blog2019 (9) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of the investigation conducted by them on the brokers / share broking entities etc. This is not permissible. This being so, in the interests of natural justice, the issue of the genuineness of the transactions require re-adjudication. Since, the right to exemption must be established by those who seek it, the onus therefore lies on the assessee. In order to claim the exemption from payment of income tax, the assessee had to put before the Income Tax authorities proper materials which would enable them to come to a conclusion.Thus, the AO must keep in mind that the onus of proving the exemption rests on the assessee. If the AO does have any evidence to the contrary, it is to be put to the assessee for his rebuttal. The internal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 for the assessment year 2015-16, respectively. Since common issues are involved in these appeals, they are heard together and being disposed together, for convenience sake. 2. Both these assessees have purchased shares of M/s. Kailash Auto Finance Limited / M/s.Kailash Auto Ltd., as the case may be, by cash, for a nominal price, off market, from broker, Shri Krishna Bhatter, Kolkata. Subsequently, each of them sold shares on huge price, earned a huge profit of LTCG and claimed it as an exempt income U/s.10(38). The respective Assessing Officer, on the basis of the report of investigations done by the Revenue in Kolkatta in which the broker named the respective assessee as a beneficiary of bogus LTCG or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of shares by the respective assessee, as penny stock transactions. The Ld.AR submitted on the lines of grounds of appeal and relied on the order of this Tribunal in the case of Shri Heerachand Kanunga for assessment years 2010-11 2011-12 in ITA Nos. 2786 2787/Mds/2017 dated 03.05.2018. Per Contra, the Ld.DR submitted that the assessee has claimed deduction u/s 10 (38) but the assessee has not proved the genuineness, therefore, reiterating the facts and circumstances of this case from the orders of the lower authorities the Ld. DR supported the orders of the lower authorities. 4. We have considered the rival submissions. It is noticed that each of the above the assessee has not been given a fair opportunity to prove t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 as Shri Ashok Kumar Kayan has not been provided to the assessee for cross-examination. In the absence of opportunity of cross- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 show that the assessee has held the shares for more than 12 months. This is becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13. In the result, the appeals filed by the assessee in ITA Nos.2786 2787/Chny/2017 are partly allowed for statistical purp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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