TMI Blog2022 (10) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... ng circumstances was required to be taken note of by the tribunal which exercise has not been done. Assessing Officers as well as the Commissioner (Appeals) have adopted an inferential process which is found to be a process which would be followed by a reasonable and prudent person. The Assessing Officers and the Commissioner (Appeals) have culled out proximate facts in each of the cases, took into consideration the surrounding circumstances which came to light after the investigation, assessed the conduct of the assessee, took note of the proximity of the time between the buy and sale operations and also the sudden and steep rise of the price of the shares of the companies when the general market trend was admittedly recessive and thereafter arrived at a conclusion which is a proper conclusion - Decided against assessee. - ITA No. 841/Kol/2019, 457/Kol/2019, 1966/Kol/2019, 1968/Kol/2019, 1970/Kol/2019, 1862/Kol/2019, 543/Kol/2019, 266/Kol/2019, 79/Kol/2019, 933/Kol/2018 - - - Dated:- 29-9-2022 - Shri Rajpal Yadav, Vice President And Shri Girish Agrawal, Accountant Member For the Appellant : Shri Anil Kochar, Advocate, Shri Shuvo Chakraborty For the Respondent : Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inance Ltd. for Rs.49,000/- and sold the same for Rs.18,71,450/-. Ld. AO held the amount of Rs.18,71,450/- as unexplained cash credit u/s 68 of the Act. 3.4 ITA No. 1968/Kol/2019 [AY 2015-16]: Assessee filed the return of income on 28.08.2015 reporting total income of Rs.1,69,370/. In this case assessee has earned LTCG of Rs.4,50,750/-. This LTCG was set off against Long Term Capital Loss suffered from sale of other scrips and balance amount of Rs.1,52,370/- was claimed exempt from income-tax under section 10(38) of the Act. Assessee had purchased 2,500 shares of Sulabh Engineers Services Ltd. at Rs.1,49,900/- on 14.03.2013 and sold the same on 04.09.2014 for Rs.6,00,650/-, total gains (LTCG) earned Rs.4,50,750/-. Ld. AO made the addition of Rs.6,00,650/- as unexplained cash credit u/s 68 of the Act in respect of sale consideration received on sale of shares. 3.5 ITA No. 1970/Kol/2019 [AY 2012-13]: Assessee filed the return of income on 25.09.2012 reporting total income of Rs.4,39,384/-. Assessee purchased 150 equity shares of High Land Dealcom Pvt. Ltd. from Debaraj Suppliers Pvt. Ltd. on 27.08.2009 for Rs.60,000/- in an off market transaction. Later, Highland Dealcom Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,500/- received through the share broker Eureka Stock Share Bolding Ltd. Ld. AO after considering the submission of the assessee observed that assessee had never transacted in the scrip Sharsha Tex in the past and made the addition of Rs. 52,21,500/- as unexplained cash credits u/s 68 of the Act. 3.9 ITA No. 79/Kol/2019 for [AY 2014-15]: Assessee filed the return of income on 27.03.2015 reporting total income of Rs.6,58,120/-. Assessee claimed LTCG u/s. 10(38) of the Act for Rs.48,13,028/- and ld. AO had held it as bogus. Assessee had purchased 10,000 scrips of Smartchamps IT and Infra Ltd. on 02.06.2012 from Saffron Procon Pvt. Ltd., offline for Rs.1,00,000/-. Later, the said company Smartchamps IT and Infra Ltd. got amalgamated with Cressanda Solutions Ltd. w.e.f. 24.01.2013. In consequence to the amalgamation, against 10,000 shares of Smarchamps IT and Infra Ltd, 10,000 shares of Cressanda Solutions Ltd were issued to the assessee. Assessee sold the entire lot in the period from 26.06.2013 and 05.07.2013 for a total consideration of Rs.48,13,028/-. Ld. AO after considering the reports of the Investigation Wing of the Department, came to the conclusion that huge profit ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court by taking the report of the Directorate of Investigation of the Department as the basis, gave its observations and findings, which are summarized hereunder. 5.1 There are two category of cases dealt with by the Hon ble High Court, viz. first category being those arising out of the order of Tribunal dated 26.06.2019 in which 90 appeals filed by the assessees were allowed and second category is of those cases where assessee has challenged the assumption of jurisdiction by CIT under section 263 of the Act. In the present set of appeals before us, we are concerned with the first category whose relevant observations and findings by the Hon ble High Court are noted below: a) From the assessment order passed in the case of the assessee Smt. Swati Bajaj, we find that the genesis of the issue commenced from an investigation report submitted by the Directorate of Income Tax, Investigation, Kolkata (DIT). The investigation report has been prepared by the Deputy Director of Income Tax, Investigation Unit -II and III, Kolkata. [para 43] b) The assessee were conscious of the fact that they have not been named in the report, therefore made a vague and bold statement that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the 'players' can never be established by direct evidence and therefore the surrounding circumstances was required to be taken note of by the Tribunal which exercise has not been done. [para 99] i) The assessee had opportunity to prove that there was no manipulation at the other end and whatever gains the assessee has reaped was not tainted. This has not been proved or established by any of the assessee. [para 99] j) The tribunal being the last fact finding authority was required to go deeper into the issue as the matter have manifested large scale scam. Thus, the orders of the tribunal are not only perfunctory but perverse as well. The exercise that was required to be done by the tribunal is to consider the totality of the circumstances because the transactions are shown to be very complex, the meeting of minds of the players can never be established by direct evidence and therefore the surrounding circumstances was required to be taken note of by the tribunal which exercise has not been done. [para 99] k) In such factual scenario, the Assessing Officers as well as the Commissioner (Appeals) have adopted an inferential process which is found to be a process wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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