TMI Blog2024 (4) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... act that the shares remained in the account of assessee, the assessee also furnished demat account and details of bank transaction about the sale and purchase of shares, the addition was deleted. As in the case of PCIT Vs. Indravadan Jain, HUF [ 2023 (7) TMI 1091 - BOMBAY HIGH COURT] also held that when AO nowhere alleged that transactions made by assessee with a particular broker or share broker was bogus, merely because investigation was done by SEBI against the broker or its activities, the assessee cannot be said to have entered into ingenuine transaction. We find that assessee made sale of shares through BSE and paid security transaction tax and there is no allegation against the share broker through whom assessee has made sales that they were indulging any price manipulation. Therefore, we do not find any justification in treating the LTCG as unexplained cash credit in absence of any cogent evidence. So far as reliance in case of case of PCIT vs. Swati Bajaj [ 2022 (6) TMI 670 - CALCUTTA HIGH COURT] we find We find in the case of Himani M. Vakil [ 2012 (9) TMI 1099 - GUJARAT HIGH COURT] held that when the assessee proved genuineness of sale transaction by bringing on record c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through electronic mode in a faceless regime, so the communication of order of NFAC/Ld.CIT(A) on the ITBA portal was not in the knowledge of present Authorized Representative as the regular Chartered Accountant (CA) is frequently changing pass-ward for the purpose of safety and security of their electronic sets. The Ld. AR for the assessee submits that order of NFAC/Ld.CIT(A) came to his notice only in the first week of January, 2024 when his office clerk obtained new pass-word from regular CA of assessee on logging ITBA portal they realized that NFAC/Ld.CIT(A) has already passed order on 16.10.2023 in both the appeals. On coming to know about passing the impugned order, both present appeals were filed immediately before Tribunal. The Ld. AR for the assessee submits that delay in both appeals occurred due to frequent changing of pass-word by regular CA of assessee and there is no wilful or deliberate negligent on the part of assessee in filing both appeals belatedly. The Ld. AR for the assessee submits that delay is very small and the assessee is not going to be benefited by filing appeals belatedly. 3. On the other hand, Ld. Senior Departmental-Representative (Ld. Sr-DR) for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer noted that assessee has made purchase of share of Sunrise Asian Ltd. on 02,.10.2011 at a cost of Rs. 2,00,000/-. The shares were sold on 29.05.2014 at a consideration of Rs. 48,96,881/-. Thus, the assessee has shown exempted LTCG of Rs. 46,96,881/-. The assessee was show caused to reply by 26.12.2017. The show cause was replied by assessee vide reply dated 26.12.2017. The relevant part of reply is recorded by Assessing Officer in para-9 of assessment order. The assessee in his reply submitted that he has already given reply on 13.12.2017 and attended the proceedings on 18.12.2017. The assessee in his reply submitted contract note of purchase of share through Jainam Share Consultants Pvt. Ltd. filed copy of accounts confirmation, summary of transaction of transaction of share in the books of his broker copy of holding period and copy of shares certificate. The assessee stated that he has purchased share of 10,000 share of Conart Traders Ltd. having face value of Rs. 10/- at a premium of Rs. 10/- on 02.10.2011. The shares were purchased for consideration of Rs. 2,00,000/- and payment made through account payee cheque. The transactions were conducted through Jainam Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing the appeal of assessee by relying on decision of Hon ble Calcutta High Court in the case of PCIT vs. Swati Bajaj (2022) 139 taxmann.com 352 (Cal). The NFACT/Ld.CIT(A) also confirmed the action of Assessing Officer without giving any independent finding. 8. Thus, aggrieved against both the orders of NFAC/Ld.CIT(A) assessee has filed both the appeals before the Tribunal. 9. We have heard the submission of Ld.AR for the assessee and Ld. Senior Departmental-Representative (Ld. Sr-DR) for the Revenue. The Ld.AR for the assessee submits that assessee has purchased share of Conart Traders Ltd. having face value at Rs. 10/- at a premium of Rs. 10/-. The assessee purchased 10,000 share of Conart Traders Ltd. and subsequently Conart Traders Ltd. was amalgamated with Sunrise Asian Ltd. Such fact is not in dispute and share of assessee was transferred to demat account. During the assessment the assessee filed detailed submissions and the evidences to prove the transaction, but the Assessing Officer has not considered the submission of assessee and made addition with pre-determined notions. The Ld. CIT(A) confirmed the action of Assessing Officer without appreciation of facts in a single ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchased by assessee was indulging in providing accommodation entries and assessee has shown abnormal profit within a short span of time. The Ld. Sr-DR for the Revenue submits that assessee failed to disclose how she came to know about such company provided higher profit on sale of their shares and all transactions shown by assessee are nothing but a bogus penny stock share transaction. 11. We have considered the rival submissions of both the parties and have gone through the orders of lower authorities carefully. We have also deliberated on various case laws relied by the ld AR for the assessee as well as by ld CIT(A) in his impugned order. We find that the Assessing Officer doubted the transaction of assessee on the basis of report of Investigation Wing Kolkata. We find that merely because there was allegation and investigation was done by SEBI against the company and assessee cannot be said to have enter into ingenuine transactions. So far as assessee is concerned, she has no control over the activities of the brokers or price manipulation. We further find that during assessment the assessee has furnished complete evidence including contract note of shares, demat details, detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otes of sale and purchase, bank statement of broker and demat account showing transfer in and out of shares, Assessing Officer was not justified in bringing to tax capital gain arising from sale of shares as unexplained cash credit. Thus, the decision of jurisdictional high Court is binding precedent in the territory of Gujarat. In the result, the addition of undisclosed income under section 68 is deleted. In the result, the ground of appeal raised by the assessee is allowed. 14. In the result, assessee s appeal No. 15/SRT/2024 is allowed. ITA No. No.16/SRT/2024 . 15. Considering the facts that we have allowed appeal of assessee in ITA No. 15/Srt/2024 in allowing the long term capital gain, the addition of unexplained expenditure added by assessing officer while passing order under section 154of Income Tax Act, and taxing the addition under section 115BBE @ 30% will not survive. Even, otherwise such addition in the order under section 154 is made without serving any show cause notice. Hence, the grounds of appeal raised in this appeal are also allowed. 16. In the Result, assessee s appeal ITA No. 16/SRT/2024 is allowed. A copy of instant common order be placed in respective case fi ..... 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