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TMI Blog2019 (11) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 0.25 per share of M/s.Blazon Marbles Ltd., on 28.04.2010 in cash for Rs. 25,000/-. The assessee had also purchased 70,000 shares at the rate of Rs. 0.35 per share of M/s. Gujarat Narmada Flyash Co. Ltd., on 12.05.2010 for Rs. 24,500/-. Later, the assessee sold them on various dates relevant to assessment year 2013-14 for Rs. 1,53,04,604/- and Rs. 27,79,262/- and claimed Long Term Capital Gains to the extent of Rs. 1,80,34,450/-. Based on the information received from the Directorate of Investigation of Bangalore and Kolkata, the Assessing Officer reopened the assessment and after considering the assessee's explanation, material etc., on the basis of investigations done by the Revenue and after analyzing these transactions concluded that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in confirming the addition made by the Ld. Assessing Officer in treating the purchase and sale of shares by the 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 Mr Sunil Kumar Lalwani Vs ITO & others, Non Corporate Circle 9(4), Chennai in ITA No 659 & 660/ CHNY/2018 dt. 09.01.2019. Per Contra, the Ld DR submitted that the assessee has claimed deduction U/s 10 (38) but he 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 those orders and invited our attention to this Tribunal decision in the case of Shri Heerachand Kanunga, for assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the Hon'ble Delhi High Court in the case of Pr.CIT Vs. M/s.Laxman Industrial Resources Ltd., in ITA N'o.169/2017, C.M.APPL.7385/2017 vide order dated 14.03.2017 has held the issue in favour of the assessee. The Id. 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 Officer, in ITA No.2035/Chny/2038 for assessment year 2011-12 vide order dated 03.12.2018 wherein the Co-ordinate Bench of this Tribunal has held as follows:- "5. We have considered the rival submissions on either side and perused the relevant material available on record. Admittedly, the A.O received information from Investigation Wing of the Department at Kolkata with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department at Kolkata to the assessee and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee." 5. Further, perusal of assessee's case shows that it is similar to the facts in the case of Shri Heerachand Kanunga, a decision of the Co-ordinate Bench of this Tribunal made for assessment years 2010-11 & 2011-12 in ITA Nos. 2786 & 2787/Mds/2017 dated 03.05.2018 . The relevant portions from that order is extracted as under :- "9. A perusal 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 Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount 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 the shares of the assessee? 11. A perusal of the Assessment Order at Para No.7.1 shows that in the Written Submissions, the assessee states that he has purchased 15000 shares 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 actu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This being so, as the facts are not coming out of the Assessment Order nor the order of the Ld.CIT(A) nor from the side of the assessee, we are of the view that the issues in this appeal must be restored to the file of the AO for readjudication after granting the assessee adequate opportunity to substantiate its case and we do so. 12. The statement recorded by the Revenue from Shri Ashok Kumar Kayan cannot be used as an evidence against 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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