TMI Blog2020 (1) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... explained cash credit to the AO for fresh consideration as directed by the Tribunal in the case of Shri Ramesh Kumar Shah (supra). We make it clear that all issues raised by the assessee in this appeal are also left open for consideration. - 1866 to 1872/Bang/2019 - - - Dated:- 3-1-2020 - Shri N.V. Vasudevan, Vice President And Shri A K Garodia, Accountant Member ORDER PER BENCH These are appeals by 5 different assesses against separate orders all dated 17.07.2019 of the CIT(Appeals)-2, Bengaluru and all appeals relate to assessment year 2015-16. 2. The issue that needs to be adjudicated in these appeals is as to whether the revenue authorities were justified in treating the long term capital gain (LTCG) on sale of shares declared by the assessee as unexplained cash credit u/s. 68 of the Income-tax Act, 1961 [the Act] and adding the same to the total income of the assessee as income under the head income from other sources . 3. All the assesses are individuals. During the relevant previous year they sold shares of a company by name Lifeline Drugs Pharma Ltd. and declared LTCG o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO in the order of assessment are in violation of principles of natural justice and not valid because of non-compliance of legal requirements in quasi-judicial proceedings. Thus, the assessee has challenged the non-furnishing of investigation report and statements of persons on the basis of which conclusions have been drawn by the AO. He also brought to our notice that the CIT(A), despite specific objection, has not chosen to address the same. Our attention was also drawn by the ld. counsel for the assessee to ground No.2.1 of the grounds of appeal, which reads as follows:- 2.1 In any case the assessment order passed is in gross violation of the principles of natural justice and fair play, especially in the absence of report/information and cross examination of person whose statements were relied upon by the Assessing officer while passing the order, makes the order totally bad in law and liable to be cancelled. According to him, therefore the entire addition made is liable to be set aside. 7. The ld. counsel for the assessee filed before us a copy of the order dated 05.12.2018 in the case of Shri Ramesh Kumar S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile of the AO to readjudicate the issue afresh; after making available to the assessee for rebuttal all documents; including Statements, Investigation Reports, etc., relied upon by Revenue for making the additions/disallowances and providing adequate opportunity to the assessee for crossexamination of persons whose statements are being relied upon. It is accordingly ordered. Consequently, ground No. 2 is disposed off as above. 8. A copy of the judgment of the Hon ble Karnataka High Court in the case of Mrs. Chandra Devi Kothari Vs. ITO W.P.39370/2014 (T-IT) was also filed before us wherein on identical issue of accommodation/bogus entries based on statement of third parties, the Hon ble Karnataka High Court took the view that the matter requires to be re-considered by providing fair and reasonable opportunity of hearing to the Assessee after providing copies of statement relied upon by the revenue. 9. The ld. DR submitted that the AO has given valid reasons based on which he has come to the conclusion that LTCG declared by the assessee is bogus. According to him, it cannot be said that the conclusions drawn by the AO which was confirmed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls listed below. MK. Rajeshwari vs. ITO in ITA No.1723/Bang/2018, order dated 12.10.2018. Abhimanyu Soin vs. ACIT in ITA No. 9511Chdl2016, order dated 18.04.2018. Sanjay Bimalchand Jain vs. ITO 89 taxmann.com 196. Dinesh Kumar Khandelwal, HUF vs. ITO in ITA No. 58 591/Nag/2015, order dated 24.08.2016. Ratnakar M Pujari vs. ITO in IT No. 9951Muml2012, order dated 03.08.2016. Disha N. Lalwani vs. ITO in ITA No. 6398/Mum/2012, order dated 22.03.2017, ITO vs. Shamim. M Bharwoni [2016] 69 taxmann.com 65. Usha Chandresh Shah Vs ITO in ITA No. 6858/Mum/2011, order dated 26.09.2014. CIT vs. Smt. Jasvinder Kaur 357 ITR 638. 12. Facts as well as rationale given by Hon 'ble High Court are squarely applicable to case before us. Hence, keeping in view overall facts and circumstances of case that profits earned by assessee are part of major scheme of accommodation entries and keeping in view ratio of judgments quoted above, we, hereby decline to interfere in order of Ld. CIT(A). (emphasis supplied) 11. The Hon ble Delhi High Court agreed with the aforesaid reasoning of the Tribunal. Our attention was also drawn to certain observations of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is further observed that Ld. AO has not examined/called for any evidences in respect of purchase/sale of alleged scripts. Assessee is therefore directed to provide all relevant documents to establish sound financial of alleged companies and that fluctuation in price was market driven. Ld.AO shall take all evidences into consideration and then decide the issue as per law. In the event de hors statement, there are overwhelming evidences and assessee is unable to establish genuineness of sale and purchase of alleged scripts, adverse view would be taken by holding the transaction to be sham. 8. Ld.AO is directed to provide all statements recorded by investigation wing to assessee, referred to in assessment order. In the event, statements recorded are not of secondary and subordinate category, cross examination has to be granted to assessee. Ld.AO is directed to re-examine the case of assessee in the light of aforestated direction in accordance with law. Needless to say that proper opportunity shall be granted to assessee to represent its case as per. 13. According to the ld. DR, therefore, the plea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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