TMI Blog2021 (1) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant, the additions cannot be sustained. Lower tax authorities are not able to sustain the addition without any cogent material on record. We thus find no perversity in the Impugned Order. - ITA 125/2020, ITA 130/2020 and ITA 131/2020 - - - Dated:- 15-1-2021 - HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW AND HON BLE MR. JUSTICE SANJEEV NARULA Appellant Through: Mr. Zoheb Hossain, Senior Standing Counsel. Respondent Through: None. JUDGMENT SANJEEV NARULA, J. (Oral) CM APPL. 6933/2020 (for condonation of delay in re-filing) CM APPL. 7056/2020 (for condonation of delay in re-filing) CM APPL. 7057/2020 (for condonation of delay in re-filing) 1. For the reasons stated in the applications, the delay of 11 days in refiling ITA 125/2020 and the delay of 13 days in re-filing ITA 130/2020 ITA 131/2020, is condoned. 2. The applications stand disposed of. ITA 125/2020, ITA 130/2020 ITA 131/2020 3. The present appeals under Section 260A of the Income Tax Act, 1961 [hereinafter referred to as the Act ] are directed against the common order dated 6th August, 2019 [hereinafter referred to as the Impugned Order ] passed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: 21. A perusal of the assessment order clearly shows that the Assessing officer was carried away by the report of the Investigation Wing Kolkata. It can be seen that the entire assessment has been framed by the Assessing Officer without conducting any enquiry from the relevant parties or independent source or evidence but has merely relied upon the statements recorded by the Investigation Wing as well as information received from the Investigation Wing. It is apparent from the Assessment Order that the Assessing Officer has not conducted any independent and separate enquiry in the case of the assessee. Even, the statement recorded by the Investigation Wing has not been got confirmed or corroborated by the person during the assessment proceedings. xx xx xx 23. It is provided u/s. 142 (2) of the Act that for the purpose of obtaining full information in respect of income or loss of any person, the Assessing Officer may make such enquiry as he considers necessary. In our considered view the Assessing Officer ought to have conducted a separate and independent enquiry and any information received from the Investigation Wing is required to be corroborated and affir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Investigation Wing and the same cannot be the sole basis of assessment without conducting proper enquiry and examination during the assessment proceedings itself. In our humble opinion, neither the Assessing Officer conducted any enquiry nor has brought any clinching evidences to disprove the evidences produced by the assessee. The report of Investigation Wing is much later than the dates of purchase / sale of shares and the order of the SEBI is also much later than the date of transactions transacted and nowhere SEBI has declared the transaction transacted at earlier dates as void. xx xx xx 30. Considering the vortex of evidences, we are of the considered view that the assessee has successfully discharged the onus cast upon him by provisions of section 68 of the Act as mentioned elsewhere, such discharge of onus is purely a question of fact and therefore the judicial decisions relied upon by the DR would do no good on the peculiar plethora of evidences in respect of the facts of the case in hand and hence the judicial decisions relied upon by both the sides, though perused, but not considered on the facts of the case in hand. 6. Aggrieved by the aforesaid findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysis to test the veracity of the claims of the Respondent and after objective examination of the facts and documents, the conclusion arrived at by the AO in respect of the transaction in question, ought not to have been interfered with. In support of his submission, Mr. Hossain relies upon the judgment of this Court in Suman Poddar v. ITO, [2020] 423 ITR 480 (Delhi), and of the Supreme Court in Sumati Dayal v. CIT, (1995) Supp. (2) SCC 453. 9. Mr. Hossain further argues that the learned ITAT has erred in holding that the AO did not consider examining the brokers of the Respondent. He asserts that this holding is contrary to the findings of the AO. As a matter of fact, the demat account statement of the Respondent was called for from the broker M/s SMC Global Securities Ltd under Section 133(6) of the Act, on perusal whereof it was found that the Respondent was not a regular investor in penny scrips. 10. We have heard Mr. Hossain at length and given our thoughtful consideration to his contentions, but are not convinced with the same for the reasons stated hereinafter. 11. On a perusal of the record, it is easily discernible that in the instant case, the AO had proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecture made by the AO. This flawed approach forms the reason for the learned ITAT to interfere with the findings of the lower tax authorities. The learned ITAT after considering the entire conspectus of case and the evidence brought on record, held that the Respondent had successfully discharged the initial onus cast upon it under the provisions of Section 68 of the Act. It is recorded that There is no dispute that the shares of the two companies were purchased online, the payments have been made through banking channel, and the shares were dematerialized and the sales have been routed from de-mat account and the consideration has been received through banking channels. The above noted factors, including the deficient enquiry conducted by the AO and the lack of any independent source or evidence to show that there was an agreement between the Respondent and any other party, prevailed upon the ITAT to take a different view. Before us, Mr. Hossain has not been able to point out any evidence whatsoever to allege that money changed hands between the Respondent and the broker or any other person, or further that some person provided the entry to convert unaccounted money for getting b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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