TMI Blog2021 (1) TMI 953X X X X Extracts X X X X X X X X Extracts X X X X ..... JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER Appellant by : Shri Rakesh Garg, Advocate Respondent by : Shri Ajay Kumar, D.R. ORDER PER T. S. KAPOOR, A.M. This is an appeal filed by the assessee against the order of learned CIT(A)-I, Kanpur dated 26/06/2019 pertaining to assessment year 2015- 2016. 2. Learned counsel for the assessee, at the outset, submitted that there is a delay of five days in filing the appeal which happened due to confusion as to the date of service of notice. It was submitted that CIT(A) sent the order by mail on 06/07/2019 whereas the physical copy o0f the same was received by the assessee on 24/07/2019. The assessee mistook the date of service as 24/07/2019 instead of 06/07/2019 and that is why it has caused a delay of five days which may be condoned. Learned counsel for the assessee submitted that a copy of affidavit duly signed and notarized along with the copy of petition for condonation of delay is placed on record and prayed that the delay may be condoned and the appeal may be admitted. Learned D. R. had no objection to the condonation of delay therefore, finding the cause of delay to be genuine, learned A.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The sale proceeds of such shares was credited to the bank account of the assessee. A copy of bank account where the proceeds are reflected is placed in paper book pages 24 to 25. The copy of DEMAT statement of assessee reflects various other shares also which the assessee was holding. All these documentary evidences, which were before the Assessing Officer, show that assessee did earn Long Term Capital Gain on the sale of equity shares of CCL International Ltd. Lucknow Bench of the Tribunal in the consolidated order dated 16/12/2020 has decided similar issue in favour of the assessee by holding as under: 6. We have heard the rival parties and have gone through the material placed on record. We find that Ground Nos. 1 to 4 were not passed by Learned A. R. as he requested to pass the order on merits and therefore, same are dismissed as not pressed. Ground Nos. 5 to 8 relates to the addition under dispute regarding denial of exemption of long term capital gain. Ground No. 9 and 10 are regarding addition u/s 69 of the Act which the Assessing Officer had made on the basis that assessee must have paid some commission for arrangement of bogus capital gain. The facts in brief are tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has further held that this scrip was being used for creating artificial capital gain. We find that Hon'ble Tribunal in the case of Reeshu Goel has examined this aspect and after recording detailed findings has held this scrip to be a genuine scrip and has held that the scrip is not a paper entity. The detailed findings of the Tribunal, as contained from para 16 are reproduced below: 16. We have heard the rival submissions and also perused the relevant finding given in the impugned orders as well as material referred to before us. As stated above, the assessee has applied for 50,000 shares of M/s. AAR Infrastructure Ltd. for face value of ₹ 10 and paid consideration of ₹ 5 lacs vide cheque no.169799 dated 13.01.2011. The said purchase has been recorded in the accounts of the earlier year and is also reflected from the copy of bank statement place at paper book at pages 25. The purchases made in the earlier years have been accepted as only net LTCG has been taxed by the Assessing Officer. The assessee was allotted shares of M/s. AAR Infrastructure Ltd. and immediately thereafter, the assessee had dematerialised the shares on 26.02.2011 which is evident fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Page 27) d) Copy of statement of broker reflecting the credit of 50000 equity share through preferential allotment. (Page 28) e) Copy of order of Delhi High Court, dated 08.10.2011 in the matter of amalgamation of M/s AAR Infrastructure Limited into M/s CCL International Limited. (Page 29-44) f) Copy of Contacts notes reflecting the sale proceeds. (Page 45-50) g) Copy of Transaction statement reflecting the increase in the number of shares. (Page 51) h) Copy of Bank Statement of the appellant reflecting the amount received on sale of shares. (Page 54). 18. The entire premise of the Assessing Officer for treating the entire transaction to be a bogus Long Term Capital Gain and making addition u/s. 68 is that, firstly, M/s. CCL International Ltd. did not have much financial worth to justify such a price rise; secondly, the SEBI had suspended the trade of the share for a brief period; thirdly, he has pointed out the history of price rise between 06.02.2010 to 25.11.2014 and then has drawn adverse inference that price of these shares were manipulated and rigged in the stock exchange which was solely to provide accommodation entries to the various parties; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he general modus operandi and statement of some brokers recorded by the Kolkata Investigation Wing does not mean that all the transactions undertaken of the scrip M/s. CCL International Ltd. through the country by millions of subscribers are bogus. Thus, in absence of any material or evidence against the assessee, we do not find any reason as to why the claim of Long Term Capital Gain from sale of such share should be denied. Consequently, the addition on account of commission is also deleted. Accordingly, we delete the addition made by the Assessing Officer. 6.2 The above findings of the Tribunal clearly demonstrate that the Tribunal has held the scrip of CCL International Ltd. to be a genuine scrip and has therefore, allowed the appeal of the assessee. 6.3 As regards the reliance placed by Learned D. R. on the order of Udit Kalra (supra), we find that the above case law has been held to be distinguishable by Hon'ble Delhi Tribunal in the case of Karuna Garg in I.T.A. No.1069/Lkw/2019 and further in the case of Swati Luthra vs. Income Tax Officer in I.T.A. No.6480/Lkw/2019, dated 28/06/2019. In these two cases the Hon'ble Tribunal has again allowed relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain claim in the returns which are the subject matter of the present appeal. This court has considered the submissions of the parties. Aside from the fact that the findings in this case are entirely concurrent - A.O., CIT(A) and the ITAT have all consistently rendered adverse findings - what is intriguing is that the company (M/s Kappac Pharma Ltd.) had meagre resources and in fact reported consistent losses. In these circumstances, the astronomical growth of the value of company's shares naturally excited the suspicions of the Revenue. The company was even directed to be delisted from the stock exchange. Having regard to these circumstances and principally on the ground that the findings are entirely of fact, this court is of the opinion that no substantial question of law arises in the present appeal. This appeal is accordingly dismissed. 15. On going through the aforesaid judgment, we find that no question of law was formulated by Hon'ble High Court of Delhi in the said case and there is only dismissal of appeal in limine and the Hon'ble High Court found that the issue involved is a question of fact as held by Hon'ble Apex Court in Kunhayyamm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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