9911796707
TMI Blog2019 (12) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- per share. Subsequently, they were sold. The assessee claimed Long Term Capital Gain at Rs. 10,74,325/- and claimed the same as exempt U/s.10(38). Based on the information received from the Directorate of Investigation of Kolkata, the Assessing Officer reopened the assessment, examined and held that the shares traded by the assessee as penny stock and the assessee is one of the beneficiary of trading in penny stocks and was claiming bogus capital gains. Upon examination of facts and analysis, the Assessing Officer held that the assessee had manipulated the sale of shares within a short span of time in collusion with the borkers in order to earn tax free exempt LTCG and the assessee has not proved the genuiness of transactions. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed with the reassessment, then, we hold that the Assessing Officer shall follow the directions issued by this Tribunal 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. For this purpose, the relevant portion of the order, supra, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 actually purchase the shares? Did the assessee take possession of the shares in its physical form? In Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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 crossexamination. 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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