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TMI Blog2019 (9) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... olved 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 named the shares held by the company as a paper/shell/bogus company and on the basis of suspicious sale transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the genuineness but the assessment has been made primarily, based on the evidences collected by the Revenue in the course of the investigation conducted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-examination, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 because assuming that the demat has been done and the shares of M/s.BPL has come into the assessee's demat account and has immediately flown out. Then the factum of the possession of the shares for more than 12 months have to be proved by the assessee. This is also not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantiate 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 purposes." 6. Respectfully following the above order, on the facts and circumstances of these cases, we deem it fit to remit the issue of exemption in these appeals back to the file of the respective Assessing Officer for re-adjudication on the lines indicated above. Therefore, the Assessing Officer concerned shall require the assessees; to es ..... X X X X Extracts X X X X X X X X Extracts X X X X
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