TMI Blog2023 (6) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... KEY, JM: This is an appeal preferred by the assessee against the order of the Ld. CIT(A)/NFAC, Delhi dated 27.07.2021 for AY. 2012-13. 2. The main grievance of the assessee is against the action of the Ld. CIT(A) in upholding the addition of Rs.24,67,900/- made by the AO u/s 68 of the Income Tax Act, 1961 (hereinafter the Act ) as well as the addition of notional commission of Rs.49,358/- (2% of the accommodation entry). 3. Brief facts are that the assessee an individual, has filed her return of income on 30.03.2014 declaring total income of Rs.1,88,350/-. Later, the case of the assessee was reopened u/s 147 of the Act on the basis of an information that the assessee has transacted in a scrip named M/s. PFL Infotech Ltd (hereinafter M/s. PFL ) which according to revenue is a penny stock and has been used to facilitate introduction of her unaccounted income and having taken note that the assessee has sold these shares of M/s. PFL and received sale consideration of Rs.24,67,900/- has made an addition of Rs.24,67,900/- commission of Rs.49,358/- to the total income. 4. Aggrieved, assessee preferred an appeal before the Ld. CIT(A) who was pleased to dismiss the same. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught these relevant facts to the notice of the AO on 10.12.2019 which fact have been acknowledged by the AO, but has not given any reason to brush it aside the same but made a bald statement saying that the assessee s reply are not tenable . The Ld. CIT(A) also has given specious reason to reject the claim of assessee (LTCG) on the ground that it is beyond human probabilities that the assessee would have made such a gain within short span of sixteen (16) months. Therefore, he confirmed the action of the AO. 6. I am not able to countenance this impugned action of the AO/Ld. CIT(A) on the simple ground that the assessee had produced the following primary documents to prove the transaction which has happened online through recognized stock exchange (Bombay Stock Exchange) in the open/electronic market. The assessee has been able to prove the purchase and sale of shares of M/s. PFL and has filed the following documents as under: - Sr. No. Description Annexure Page No. 1 Copy of the purchase contract note of the appellant as on 30.12.2009 Annexure A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts which shows transfer in and out of shares then there is no necessity to doubt the genuineness of the transactions. 8.4 From the above it is apparent that the decisions relied by the Ld. Revenue Authorities will not be strictly applicable to the case of the assessee and the decisions cited by the assessee are in support of the claim of the assessee. 8.5 We do understand the genuine anxiety of the Revenue to tax the assessee due to the various unnatural happening of events, but as a Judicial body our hands are tied due to the lack of material evidence against the activities of the assessee and we cannot step into the shoes of the Revenue by making further investigations and enquiries to tie up the loose ends left out by the Revenue. From the materials produced before us there is nothing on record to establish that the transactions of purchase and sale of shares made by the assessee are dubious other than the fact that the share prices of M/s. PFL Infotech Ltd., rose substantially without sound backing and the statements of few persons such as Shri Aspi Bamanji Vairava, Shri Pankaj Kumar K Shah Shri Dipti P Shah. At the same time, it should be kept in mind that stock prices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue. No such presumption could be drawn by the Assessing Officer merely on surmises and conjectures. The Tribunal took into consideration that it was only on the basis of a presumption that the Assessing Officer concluded that the assessee had paid cash and purchased the cheque. In the absence of any cogent material in this regard, having been placed on record, the Assessing Officer could not have reopened the assessment. The assessee had made an investment in a company, evidence whereof was with the Assessing Officer. Therefore, the Assessing Officer could not have added the income, which was rightly deleted by the Commissioner (Appeals) as well as the Tribunal. 8.7. In the case Omar Salay Mohamed Sait vs. CIT reported in 37 ITR 151, the Hon ble Apex Court categorically held that on no account whatever should the Tribunal base its findings on suspicions, conjectures or surmises: nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on evidence and partly on suspicions, conjectures or surmises and if it does anything of the sort, its findings even though on questions of fact will be liable to be set aside by the court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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