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TMI Blog2019 (11) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 shares of M/s. Kailash Auto Finance Limited and sale of 5000 shares of Kappac and claimed them as exempt income U/s.10(38). The Assessing Officer selected the case based on the computerized selection of cases due to suspicious transaction identified through data analysis. The Assessing Officer found that the transaction in shares claimed to have been done by the assessee through which he booked certain Long Term Capital Gains were not genuine and it was not in the ordinary course of investment / business. Similar pattern was followed by his close associates and relatives. Therefore, after detailed analysis, the Assessing Officer held that the assessee has entered into an engineered transaction to generate artificial Long Term Capital Gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are not the final evidence. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are of the view that the issues in this appeal must be restored to the file of the AO for re-adjudication 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(38) by providing all such evidences as required by the AO to substantiate the claim as also by producing the persons through whom the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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