TMI Blog2023 (3) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... e the issue raised by the assessee is covered to the case of Nilesh Agarwal, HUF, vs ITO [ 2021 (2) TMI 540 - ITAT JAIPUR] therefore, we do not concur with the findings of the CIT(A) and thus the appeal of the assessee is allowed. - ITA No. 250/JP/2022 - - - Dated:- 11-1-2023 - Hon ble Shri Sandeep Gosain, Judicial Member For the Assessee : Shri Rajendra Agarwal, CA For the Revenue : Mrs. Monisha Choudhary, JCIT ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. CIT(A) dated 2-08-2021, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2012-13 wherein the assessee has raised the following grounds of appeal. On the facts and circumstances of the case:- 1. The ld. CIT(A) erred in dismissing the ground of appeal that ld. AO erred in reopening the assessment. 2. That the ld. CIT(A) erred in dismissing the ground of appeal that the ld. AO erred in making huge addition of Rs.6,12,367/- stating bogus LTCG claimed u/s 10(38) in the ROI held to be income from undisclosed sources. 2.1 Apropos Ground No. 1 and 2 of the assessee, the facts as emerge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndictment by SEBI of the Stock brokers employed by assessee and the binding decisions of Hon 'ble ITAT, Hon'ble Courts and Hon'ble Supreme Court relied upon by the Id Assessing Officer,the grounds of appeal no. 2 is hereby dismissed. 5.4 Ground no. 1 challenges jurisdiction assumed by the Id AO u/s 147of the Act. From the details on record, it is evident that, Ld AO was in receipt of information that assessee has indulged in questionable transactions and claimed wrongful exemption u/s 10(35). Since the re-opening of assessment is based on specific information, the decisions relied upon by the assessee do not apply. This ground of appeal is de-void of any merit hence, dismissed. 6. In the result, appeal is dismissed. 2.2 During the course of hearing, the ld. AR of the assessee prayed that the ld. CIT(A) erred in dismissing the appeal of the assessee which should be allowed. To this effect, the ld.AR filed the following written submission. SUBMISSIONS: Ground No.1:- On perusal of the reasons recorded u/s 148(2) it appears that before re-opening of the assessment the Ld.AO had not applied his mind and there was no information before him for any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexplained cash credit is hereby directed to be deleted. 2. (Rajasthan High Court) DBIT No.209/2018 PCIT v. Pramod Jain Dt. of Order 24.07.2018 wherein the issue has been decided in favor of the assessee and against the department that the tribunal was justified in deletion the addition made by the AO and confirmed by CIT(A), made on account of bogus long term capital gain as the companies in which the investment was made were bogus. 3. (Delhi High Court) ITA No.125/2020 PCIT v. Smt.Krishna Devi Dt. of Order 15.01.2021 wherein it has been decided that the Ld.ITAT being the last fact finding authority, on the basis of evidence brought on record, has rightly come to the concusion that the lower tax authortieis are not able to sustain the addition without any cognet material on record, we thus find no perversity in the impugned order. In this case of the Ld.ITAT decided that A perusal of the assessment order clearly shows that the Assessing officer was carried away by the report of the Investigation Wing Kolkata. It can be seen that the entire assessment has been framed by the Assessing Officer without conducting any enquiry from the relevant parties or independent source or ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned at New Delhi and their names also do not find place in the list mentioned here in above in the SEBI order. There is nothing on record to show that the brokers were suspended by the SEBI nor there anything on record to show that the two brokers of the appellants mentioned here in above were involved in the alleged scam. The Assessing Officer has not even considered examining the brokers of the appellants. It is a matter of the fact that SEBI looks into irregular movements in share prices on range and warn investor against any such unusual increase in shares prices. No such warnings were issued by the SEBI. There is no dispute that the statements which were relied by the Assessing Officer were not recorded by the Assessing Officer in the assessment proceedings but they were pre-existing statements recorded by the Investigation Wing and the same cannot be the sole basis of assessment without conducting proper enquiry and examination during the assessment proceedings itself. In our humble opinion, neither the Assessing Officer conducted any enquiry nor has brought any clinching evidences to disprove the evidences produced by the assessee. The report of Investigation Wing is much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ? 14,00,000/- i.e. the amount received as share application money from M/s Singhal Securities Pvt. Ltd. In the present case, it cannot be said that the AO was having any material in his possession except the information received from the Investigation Wing. Therefore, the reopening was done by the AO only on the basis of the information received from Investigation Wing. In the present case also the AO in the reasons recorded mentioned that it had come to his knowledge that the persons from whom amount was received were entry operator and provided the entries to the assessee after receiving the amount in cash, however, nothing was brought on record that how and in what manner the persons from whom the assessee received the loans were entry operator and that as to how the cash was paid by the assessee. In fact the aforesaid conclusion of the A.O. is unhelpful in understanding as to whether the AO applied his mind to the material, particularly when he did not describe how and what manner it came to his knowledge that the assessee receive the accommodation entries. We, therefore, by keeping in view the ratio laid down by the Hon'ble Jurisdictional High Court in the aforesaid refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of sales and purchases, copy of bank statement (PB-6) alongwith copy of account payee cheque (PB-4) evidencing the receipt of sales consideration of sales of shares through banking channel, complete details STT paid on sale of shares (PB-3) , party combined bill of settlement for sale of shares (PB-5) purchase bill of shres were furnished before the Ld. AO. The Ld.AO examined the same in depth and no adverse inference was drawn by him. The assessee submitted all the documentary evidences and information in evidence of his claim which are probable and expected from a human being and proved his onus to prove. But the Ld.AO arbitrarily disallowed the claim of the assessee and made a very huge addition of Rs.6,12,367/- stating bogus LTCG claimed u/s 10(38) in the return of income held to be income from other sources without any congent evidence, inquiry, investigation or information, which is unjustified, bad in law and needs deletion. Reliance has been placed on the following judgements:- 1. (JP-Trib) 2021 ITL 2057 Nilesh Agrawal HUF v.ITO ITA No.222-223/JP/2020 Dt. of Order 09.02.2021 2. (Rajasthan High Court) DBIT No.209/2018 PCIT v. Pramod Jain Dt. of Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as her income from undisclosed sources and thus computed the bogus LTCG claimed u/s 10(38) of the Act. In first appeal, the ld. CIT(A) confirmed the action of the AO holding as under:- 5.3 In view of the clear factual finding by the ld AO, indictment by SEBI of the Stock brokers employed by assessee and the binding decisions of Hon 'ble ITAT, Hon'ble Courts and Hon'ble Supreme Court relied upon by the Id Assessing Officer,the grounds of appeal no. 2 is hereby dismissed. 5.4 Ground no. 1 challenges jurisdiction assumed by the Id AO u/s 147of the Act. From the details on record, it is evident that, Ld AO was in receipt of information that assessee has indulged in questionable transactions and claimed wrongful exemption u/s 10(35). Since the re-opening of assessment is based on specific information, the decisions relied upon by the assessee do not apply. This ground of appeal is de-void of any merit hence, dismissed. The Bench has taken into consideration the orders of the lower authorities and the decisions cited therein. The Bench noted that the issue raised by the assessee is covered by the order of ITAT Jaipur in the case of Nilesh Agarwal, HUF vs ITO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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