TMI Blog2022 (10) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. The issue involved in these appeals is squarely covered against the assessee by the said decision as the fact involved are identical to that which were before the Hon ble High Court. - Decided against the assessee. - I.T.A. No. 2552/KOL/2018 And I.T.A. No. 1122/KOL/2018 And I.T.A. No. 2093/KOL/2019 And I.T.A. No. 2104/KOL/2018 And I.T.A. No. 868/KOL/2019 And I.T.A. No. 341/KOL/2018 And I.T.A. No. 1673/KOL/2019 - - - Dated:- 17-10-2022 - Shri Rajpal Yadav, Vice-President (KZ) And Shri Girish Agrawal , Accountant Member For the Assessee : Shri Subash Agarwal , Advocate, For the Revenue : Shri Biswanath Das, Sr. DR ORDER PER BENCH: - All these captioned seven appeals filed by different assessees are against the separate orders of ld. CIT(Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of Rs.9,07,030/-. In the return of income, the assessee had claimed long-term capital gain of Rs.47,61,763/- as exempt. In this respect, it was noted that the assessee had purchased 2,71,500 equity shares of Kailash Auto Finance Limited, which were sold on different dates for Rs.50,45,332/- through the broking entity Arihant Capital Marketing Pvt. Limited. The details of purchase and sale of this script were examined based on the information received by the ld. Assessing Officer from the Directorate of Income Tax, Kolkata. The ld. Assessing Officer concluded the assessment by making an addition of Rs.47,61,763/- by treating it as unexplained cash credit under section 68 of the Act. He also made an addition of Rs.23,807/- towards commission payable towards the accommodation entries taken by the assessee in the form of long-term capital gain. 3.4. ITA No. 2104/KOL/2018 (A.Y. 2014-15): Return was filed on 20.07.2014 reporting total income of Rs.8,24,440/-. In the return, the assessee had included long-term capital gain from sale of equity shares for Rs.81,65,046/- claimed as exempt under section 10(38) of the Act. In this respect, the facts are that the assessee purchased 1,600 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an probabilities coupled with the report of the Directorate of Investigation, ld. Assessing Officer treated the long-term capital gain as income from undisclosed sources denying the claim of exemption. He also made an addition of Rs.23,581/- in respect of commission as unexplained expenditure charged by the operators. 3.7. ITA No. 1673/KOL/2019 (A.Y. 2015-16):- Return of income was filed on 30.09.2015 reporting total income of Rs.7,49,300/-. In the course of assessment, ld. Assessing Officer noted that the assessee had dealt in share transactions for two companies, namely- (i) Pine Animation Limited for which shares worth Rs.20,04,200/- were purchased, which were subsequently sold for an amount of Rs.7,49,760/- resulting into a loss of Rs.12,54,440/-. (ii) The second company in which the assessee did share transactions, is Unno Industries Limited for which purchases were of Rs.24,38,656/- and sale for the same at Rs.10,02,691/- giving rise to the loss of Rs.14,35,963/-. Thus the assessee claimed a net loss of Rs.26,90,405/- and adjusted this with other Heads of Income pleading to reduction in total taxable income. Ld. Assessing Officer opined that the trading loss on these penny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls 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 non-furnishing of report would vitiate the proceedings. Therefore, merely by mentioning that statements have not been furnished can in no manner advance the case of the assessee. If the report was available in the public domain as has been downloaded and produced by the revenue, nothing prevented the assessees who are ably defended by the Chartere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
