TMI Blog2022 (12) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... proximity of time between the two which are relevant factors. Therefore, the methodology adopted by the revenue cannot be faulted. Test of preponderance of probabilities have to be applied and while doing so, the court cannot loose sight of the fact that the shares of very little known companies with in-significant business had a steep rise in the share prices within the period of little over a year. The assessee was not named in the report and when the assessee makes the claim for exemption, the onus of proof is on the assessee to prove the genuinity. It is incorrect to argue that the assessees have been called upon to prove the negative in fact, it is the assessees duty to establish that the rise of the price of shares within a shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ti Bajaj others (supra), we respectfully following the said decision carrying the force of binding nature, being the jurisdictional High Court, dismiss the appeal of the assessee and confirm the action of the Ld. CIT(A). Appeal of the assessee is dismissed. - ITA No.2223/Kol/2019 - - - Dated:- 13-12-2022 - Shri Rajpal Yadav, Vice President And Shri Girish Agrawal, Accountant Member For the Appellant : None For the Respondent : Smt. Ranu Biswas, Addl. CIT, DR ORDER PER GIRISH AGRAWAL, ACCOUNTANT MEMBER: This appeal filed by the assessee is against the order of Ld. CIT(A)-10, Kolkata vide Appeal No. 965/CIT(A)-10/Wd-36(1)/2015- 16/2017-18/Kol dated 26.07.2019 passed against the assessment order by the ITO, Ward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.04.2013 for Rs.1,20,000/- including Security Transaction Tax (STT) through North Pole Finance Ltd. These shares were sold on various dates during AY 2015-16 with total sale amount of Rs.41,56,920/-. Thus, Ld. AO noted that assessee made a gain of almost 3359% in a span of just 17 months. Ld. AO observed that GCM is one of the 84 scrips which were identified by the Investigation Directorate, involved in the scam of bogus LTCG/STCL and assessee is also a part of list of beneficiaries identified by the Investigation Directorate. Ld. AO concluded the assessment by treating the LTCG as unexplained cash credit u/s. 68 of the Act and added it to the total income of the assessee. Ld. AO further made an addition of Rs.20,184/- by taking 0.5% as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 Chartered Accountants and Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies had credit worthiness and coupled with genuinity and identity. [para 73] g) The assessee cannot escape from the burden cast upon him and unfortunately in these cases the burden is heavy as the facts establish that the shares which were traded by the assessees had phenomenal and fanciful rise in price in a short span of time. [para 75] h) 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] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessive and thereafter arrived at a conclusion which is a proper conclusion. [para 99] l) For all the above reasons, we hold that the Tribunal committed a serious error in setting aside the orders of the CIT(A) who had affirmed the orders of the Assessing Officer. [para 101] m) In the result, these appeals are allowed and the substantial questions of law framed/suggested are answered in favour of the revenue and against the assessee restoring the orders passed by the respective Assessing Orders as affirmed by the CIT(A). [para 102]. 7. In the context of factual matrix of the present appeal before us narrated above, the position of law as enunciated by the Hon ble jurisdictional High Court of Calcutta in Swati Bajaj (supra) car ..... X X X X Extracts X X X X X X X X Extracts X X X X
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