TMI Blog2021 (6) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee is bogus except the attribution by the investigation wing and SEBI. In view of these facts and circumstances, the order of ld. CIT(A) can not be sustained . Accordingly, we set aside the order of Ld. CIT(A) and direct the AO to delete the addition. Appeal of the assessee is allowed. - ITA No.390/M/2020 - - - Dated:- 7-6-2021 - Shri Rajesh Kumar, Accountant Member And Shri Amarjit Singh, Judicial Member For the Assessee : Shri Vishnu Agarwal, A.R. For the Revenue : Shri Satya Pinisetty, D.R. ORDER PER RAJESH KUMAR, ACCOUNTANT MEMBER: The present appeal has been preferred by the assessee against the order dated 19.11.2019 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,00,000/- shares of M/s Kailash Auto finance Ltd (Amalgamated Company). The AO treated the capital gain as bogus and fictitious on the basis of report of the investigation wing and findings of the SEBI which is also discussed in detail in the assessment order. The assessee filed during the course of assessment proceedings the copies of D-mat account, supporting contract notes evidencing purchase and sale of shares and payments and receipts by account payee cheques. Undisputedly, these shares were held for a period of more than 12 months. Finally, the AO issued show cause notice to the assessee as to why the claim u/s 10(38) of the Act should not be rejected on account of being bogus and finally added the same along with the commission @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of shares. a) Detailed Summary chart of Purchase and Sale (Page no 6 of paper book) b) Contract notes/Broker notes for the sale of shares through stock exchange, in which no of shares sold, rate, date etc. has been duly mentioned (Refer page no. 7 to 16 of paper book). \c) Copy of Demat/ Transaction Statement for the period 01.04.2013 to 31.03.2014. (Page no. 17 of paper book) d) Copy of Purchase bills of shares (Page no. 19 26 of paper book). e) Ledger copy of share broker. f) Ledger copy of parties from whom shares were purchased. g) Bank statement duly highlighting the Payment for purchase (Page no. 22 29 of paper book). h) Bank statement duly highlighting the receipt of sale consideration from shares (Page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of purchase bills, evidences of payment through banking channels along with bank statements etc. We note that the authorities below have relied merely on the report of investigation wing and SEBI by ignoring the facts on record. We further note that in the case of M/s. Kailash Auto Finance Ltd. the various co-ordinate benches of the Tribunal at Kolkata have decided the issue in favour of the assessee. The operative part of the decision in ITA No.1236 1237/Kol/2017 is reproduced as under: 6. We have heard both the rival submissions and perused the materials available on record. We find lot of force in the arguments of the ld AR that the ld AO was not justified in rejecting the claim of the assessee on the basis of theory of surrounding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld DR could not controvert the arguments of the ld AR with contrary material evidences on record and merely relied on the orders of the lower authorities apart from placing the copy of SEBI s interim order supra. We find that the SEBI s orders relied on by the ld AO and referred to him as direct evidence against the assessee did not contain the name of the assessee and/or the name of Ashika Stock Broking Ltd. through whom the assessee sold the shares of KAFL as a beneficiary to the alleged accommodation entries provided by the related entities / promoters / brokers / entry operators. In the instant case, the shares of CPAL were purchased by the assessee way back on 20.12.2011 and pursuant to merger of CPAL with KAFL, the assessee was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting in LTCG. These evidences were neither found by the ld AO to be false or fabricated. The facts of the case and the evidences in support of the assessee s case clearly support the claim of the assessee that the transactions of the assessee were bonafide and genuine and therefore the ld AO was not justified in rejecting the assessee s claim of exemption under section 10(38) of the Act. We also find that the various case laws of Hon ble Jurisdictional High Court relied upon by the ld AR and findings given thereon would apply to the facts of the instant case. The ld DR was not able to furnish any contrary cases to this effect. Hence we hold that the ld AO was not justified in assessing the sale proceeds of shares of KAFL as undisclosed i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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