TMI Blog2023 (1) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Tribunal, did not lead to an adverse inference. According to us, the aforesaid observations made by the Tribunal are, in effect, findings of the fact. There are concurrent findings of facts returned by the CIT(A) as well as the Tribunal. The proposed questions of law by the appellant/revenue do not state that the findings returned by the Tribunal or the CIT(A) are perverse. - ITA 13/2023 ITA 14/2023 and ITA 15/2023 - - - Dated:- 12-1-2023 - HON'BLE MR JUSTICE RAJIV SHAKDHER AND HON'BLE MS JUSTICE TARA VITASTA GANJU For the Appellant : Mr Zoheb Hossain, Mr Vipul Agarwal Mr Parth Semwal, Advocates. For the Respondent : None. [Physical Hearing/Hybrid Hearing (as per request)] RAJIV SHAKDHER, J (ORAL): CM APPL. 1300/2023 in ITA 13/2023 CM APPL. 1301/2023 in ITA 14/2023 CM APPL. 1302/2023 in ITA 15/2023 1. These are the applications filed on behalf of the appellant/revenue seeking condonation of delay in re-filing the appeals. 1.2 For the reasons given in the applications, the delay in re-filing the appeals is condoned. 1.3 The applications are accordingly disposed of. ITA 13/2023, ITA 14/2023 ITA 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icated that he was working in Octal Suppliers Pvt. Ltd, and used to buy and sell shares on instructions of Mr Sandeep Kumar Jhunjunwala. 10. The Assessing Officer has relied upon the details gathered by the Investigation Wing, to conclude that the respondent/assessee had introduced its unaccounted income to purchase and sell shares of REI. These details are set forth in the form of a flow chart in paragraph 5 of the Assessment Order in ITA 14/2023. For the sake of convenience, the said chart is set forth hereafter: 11. Thus, based on the information gathered by the Investigation Wing, the Assessing Officer concluded, that the entire set of transactions was a sham , and that the same had been configured to give the sale and purchase of shares by the respondent/assessee a legal framework. 12. It is important to note, that the Assessment Order was passed pursuant to reopening of assessment of the respondent/assessee under Section 148 of the Act. 13. Being aggrieved, the respondent/assessee carried the matter in appeal to the Commissioner of Income Tax (Appeals) [in short, CIT(A) ]. 14. The CIT(A) via order dated 29.06.2016 partly allowed the respondent/assesee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the survey carried out on 07.08.2012 on REI Agro Ltd. The relevant extract of the statement has already been incorporated above. From plain reading of the statement, nowhere it is borne out that whether the company was into manipulating of share prices in the stock exchange. He only refers to how one, Sandeep Kumar Jhunjunwala has asked to buy the shares of M/s. REI Agro and what is the right time to buy and sell the shares of such company. One highlighted portion by the Assessing Officer on which adverse inference has been drawn is that the companies have issued right issues at Rs.19.50/- and now the rate is down so we are increasing our stake and we are controlling and driving the shares to maintain the rates for the interest of shareholders This statement only refers that the company tries to see that the share price does not fall in the interest of the shareholders, nowhere it has been said that the company was involved in rigging the price in the stock exchange. Another fact the Assessing Officer had noted and has drawn adverse inference is that assessee had made transaction of shores of some of the Gujarat based companies, who in their balance sheet have shown losses on ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... net capital gain. If these shares were reflected in the books of account of the earlier years acquired as stock-in-trade, which has been sold through stock exchange after paying STT and the money has been received through banking channels, then how it can be inferred that shares were purchased and sold by way of some bogus entry. If the credits in the bank account and in the books are from sale of an asset or stock then same cannot be added u/s.68. The entire premise at the Assessing Officer is based on some investigation report wherein there is only presumption drawn that, since some Gujarat Company have purchased the shares who have incurred losses and were being funded through various routes on account of unsecured loan, therefore there must be some collusion. But such a report does not lead to any kind of inference against the assessee that the assessee was involved in either of these chains of companies to route any unaccounted money. It is not a case here where there is one instance of sale and purchase of particular share which has been sold during the year, but here it is a case where assessee is a trader in shares who has dealt in several scrips and even showing business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Ld. CIT (A) and also borne out from the record that, all the transactions have been undertaken through accredited brokerage firm through national stock exchange and all the details of contract notes, invoices, copies of account of brokerage firm have been submitted; and none of the purchases have been done off-line as all have been done through stock exchange in the normal course of business at a quoted price on the date. Thus, there is no infirmity in the order and finding of the Ld. CIT (A) and same is confirmed and addition made by the Assessing Officer is thus directed to be deleted 17. What is obvious to us on a perusal of the record, is that both the CIT(A) and the Tribunal have returned findings of fact. 17.1 The important fact is, that the respondent/assessee traded in shares and the respondent had converted a part of its stock-in-trade as investment. 18. In AY 2008-09, the respondent/asseseee had declared profit from trading in shares of REI, and during that very year, the said shares were transferred to opening stock and were purchased under investment portfolio. 19. The statement made by Mr Brij Mohan Vyas on 07.08.2012 did not reveal that REI was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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