TMI Blog2021 (1) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 20-1-2021 - Hon ble Shri Mahavir Singh, VP And Hon ble Shri Manoj Kumar Aggarwal, AM For the Assessee : Shri Hariom Tulsiyani Ld. AR For the Revenue : Shri T.S. Khalsa- Ld. Sr. DR ORDER PER BENCH 1. Aforesaid appeals by revenue for Assessment Years 2013-14 2014-15 in case of different assessee contest separate order of learned first appellate authority. However, the facts as well as issues are identical in both the appeals and it is admitted position that adjudication in any of the appeal would equally apply to other appeal also. Accordingly, we proceed to adjudicate ITA No.7354/Mum/2017 which assails the order of Ld. Commissioner of Income Tax (Appeals)-9, Mumbai [CIT(A)], Appeal No.CIT(A)- 9/ITO-4(3)(3)/125/16-17 dated 03/10/2017 wherein the assessee is aggrieved by confirmation of certain addition u/s 68 since the claim made u/s 10(38) towards sale of shares was denied. 2. We have carefully heard the rival submissions, perused orders of lower authorities and gone through documents and written submissions as placed in the paper-book. The judicial precedents as cited during the course of hearing have duly been deliberated upon. Our adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G in the hands of the assessee. 3.5 The assessee defended the genuineness of the transactions by submitting that the investment were made in ordinary course and the share were sold through recognized stock exchange in online mechanism. The sale consideration was received through banking channels. All the conditions as prescribed u/s 10(38) were duly fulfilled by the assessee. The assessee also denied having met Shri Prakash Jajodia at any time and denied having made any cash payment to any of his entities. The attention was drawn to the fact that the assessee was habitual investor engaged in trading of shares since past several years. In support of impugned transactions, copies of purchase bill issued by M/s Fairdeal Vincom Private Limited, bank statement, sale contract notes issued by M/s ASBPL as well as demat statements were submitted. The sale consideration was shown to have been received through banking channels. A plea was raised that no addition could be made solely on the basis of statement of any unknown person without giving any opportunity of cross examination. At the same time, the assessee demanded cross-examination of persons making adverse statement against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned capital gains but this fact was conveniently ignored by Ld. AO while framing the assessment. The purchase as well as sale of shares was sufficiently documented and supported by a number of evidences in the form of share purchase bill, bank statement evidencing movement of funds through banking channels, demat statement evidencing movement of shares and sale contract notes. The sale transactions were subjected to Securities Transaction Tax (STT). None of these evidences could be controverted by Ld. AO. 4.4 Proceeding further, another finding was that investigation report as well as recorded statements as forwarded by DIT (Investigation) did not specifically name the assessee as beneficiary of such transactions. Therefore, the inference drawn by Ld. AO solely on the basis of said reports and statement of Shri Prakash Jajodia could not form basis for treating the LTCG as bogus. The Ld.AO failed to conduct any independent investigation to point out defects in the evidences furnished by the assessee. No adverse inference could be draw with respect to the genuineness of the transactions merely because the addresses of several entities were common. 4.5 Another observation was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee was a habitual investor of shares for past several years. The purchase of shares in earlier year was duly reflected in its Balance Sheet which was accepted by the revenue. Apparently, all the conditions as prescribed u/s 10(38) have duly been fulfilled by the assessee. 6. On the other hand, the whole basis of disregarding these transactions is the findings rendered by investigation wing merely on the basis of statement of Shri Prakash Jajodia. Firstly, this statement was made u/s 133A during survey operations which would have no evidentiary value unless backed by cogent corroborative material on record. Secondly, the opportunity to cross-examine the persons making adverse statement was never provided to the assessee despite specific request of the assessee. Another uncontroverted finding is that the assessee was not named either in investigation report or in the statement made by Shri Prakash Jajodia. There is no admission or finding that any cash got exchanged between the assessee and any of the alleged bogus entities of Shri Prakash Jajodia. It is trite law that no additions could be made merely on the basis of suspicion, conjectures or surmise. The ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here. Both these case laws are in different factual context and hence, not applicable to the facts of the present case. 8. Keeping in view all these factors, we are of the considered opinion that the additions thus made by Ld. AO had no legs to stand and therefore, the same has rightly been deleted by Ld. CIT(A). Finding no reason to interfere in the impugned order, we dismiss the appeal. ITA No. 7355/Mum/2017, AY 2014-15 9. As stated earlier, the facts as well as issues are pari-materia the same for this assessee. An assessment was framed u/s 143(3) on 28/12/2016 wherein the exemption claimed u/s 10(38) was denied and sale proceeds of shares were considered as unexplained cash credit u/s 68. However, upon further appeal, the additions were deleted by Ld. first appellate authority vide order dated 04/10/2017 on similar logic and reasoning. Aggrieved, the revenue is in further appeal before us with similar grounds of appeal. Facts as well as issues being pari-materia the same as in preceding appeal, our findings as well as adjudication therein shall mutatis-mutandis apply to this appeal also. Consequently, the appeal stand dismissed. Conclusion 10. Both the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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