TMI Blog2023 (3) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the ld. CIT (A). Assessee s appeal stands dismissed. - ITA No.106/Del./2020 - - - Dated:- 14-3-2023 - Shri Shamim Yahya, Accountant Member And Ms. Astha Chandra, Judicial Member For the Assessee : None For the Revenue : Shri K.K. Mishra, Sr. DR ORDER PER SHAMIM YAHYA, ACCOUNTANT MEMBER : This appeal by the assessee is directed against the order of ld. CIT (Appeals)-37, New Delhi dated 30.10.2019 pertaining to the Assessment Year 2015-16. 2. The assessee has taken the following grounds of appeal :- 1. The impugned order passed by the Ld. CIT(A} is completely bad in law and wrong on facts. The Ld. CIT (A) has only gone by surmises,' conjuncture and guess work in drawing inference and in recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. CIT(A} has erred in law and on fact by confirming the addition of Rs. 63,27,566/ to the income, ignoring the basic fact that the sale and purchase of share transactions as been made through account payee cheques by the assessee after paying the security transaction tax (SIT). Further the Ld. A.O. has not disputed the purchase and sale of equity shares, holding thereof, price thereof and the amount received through the banking channel. Instead, based on some information received and statements recorded in some other cases, the exemption claimed by the assessee under section 10(38} has been denied. On this count, the present case before your honor is squarely covered by the verdict of the honorable ITAT Kolkatta in the case of Surya Prakas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... broker and have 'no control over the same. On this count, the present case before your honor is squarely covered by the verdict of the honorable ITAT Mumbai in the case of ITO Mumbai vs M/s Arvind Kumar Jain (HUF), ITA No. 4862/Mumbai/2014. Order pronounced on 18-09-2017. 5. Ld. CIT(A) has erred in law and on fact by confirming the addition of Rs. 63,27,566/- and Rs.3,16,378/- to the income, on the basis of material gathered in some other cases, outside the jurisdiction of the assessee, as an evidence, without affording any opportunity of cross examination of the person/persons whose statements are sought to be relied upon. Thus, this is a case of gross violation of principle of natural justice. 6. The Ld. CIT(A) has erred in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01, held that it is a clear-cut case of LTCG obtained through brokers and assessee has used colorable device for avoidance of tax and therefore, treated the LTCG of Rs.62,92,565/- as not genuine. 3. Upon assessee s appeal, ld. CIT (A) noted the assessee s submission and referred to case laws and finally concluded as under :- 5.24 I find that on similar facts and circumstances, Hon ble High Court Bombay (Nagpur Bench) while dismissing the appeal of the assessee in the case of Sanjay Bimalchand Jain vs. CIT-1, Nagpur in ITA No.18/2017 has expressed the view that the undisclosed income in the garb of LTCG has to be assessed as undisclosed credit u/s 68 by holding as under :- The authorities have recorded a clear finding of fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent from the real by using various evidences gathered from reliable source of information and report. 5.26 In view of the facts and circumstances borne out of the assessment order and legal precedents as discussed above, I am of the view that documents submitted as evidences to prove the genuineness of transaction are themselves found to serve as smoke screen to cover up the true nature of the transactions in the facts and circumstances of the case as it is revealed that purchase and sale of shares are arranged transactions to create bogus profit in the garb of tax exempt LTCG by well organized network of entry providers with the sole motive to sell such entries to enable the beneficiary to account for the undisclosed income for a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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