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TMI Blog2025 (3) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... -16, the assessee is assailing the decision of the Ld.CIT(A) in confirming the additionmade on the basis of whatsapp chat. 3. The facts relating to the case are discussed in brief. The assessee is carrying on monsoon shed hiring business in addition to carrying on agricultural activities. He has been making investments in shares and securities, mutual funds etc. During both the years under consideration, the assessee has sold shares of M/s.Pine Animation Ltd., and earned long term capital gains in both the years. The assessee claimed the same as exempt u/s 10(38) of the Act. The investigation wing of Income Tax Department, Kolkata found out that the prices of shares of certain companies (called as penny stock companies) are being manipulated in order to generate bogus long term capital gains. M/s.Pine Animation Ltd., was identified as one of such companies. The SEBI, being the regulator of the Stock Exchange, started investigation on those activities. In respect of M/s.Pine Animation Ltd., an Ad-interim Order dated 08-05-2015 was passed by SEBI, wherein it initiated enquiries on the promoters and the allottees of shares of M/s.Pine Animation Ltd. The said Ad-interim order containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the revenue for AY 2014-15. We noticed earlier that the search was conducted in the hands of the assessee on the basis of Ad-interim report given by SEBI, since enquiry was conducted by SEBI on all the purchasers of shares in the preferential allotment made by M/s Pine Animation Ltd (earlier known as 4K Animation Ltd). The assessee had purchased 6,00,000 shares of above said company @ Rs.10/- per share in the shares issued under private placement on preferential basis. The shares were allotted to the assessee on 07-12-2012. Subsequently, the face value of shares was split from Rs.10/- per share to Re1.00 per share. Accordingly, the assessee got 60,00,000 shares. All these shares were sold by the assessee in the month of January 2014 to March, 2014 and earned long term capital gains, which was claimed as exempt u/s 10(38) of the Act. The assessee's sister Smt. Lata Shah also purchased 6,00,000 shares and hence she was also subjected to enquiry by SEBI. 7. During the course of assessment proceedings, the AO issued a notice u/s 142(1) of the Act to the assessee raising various queries. The assessee also duly furnished replies to them. The AO noticed that the assessee has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the AO did not afford that opportunity to the assessee. Before the AO, the assessee furnished all the documents in support of purchase and sale of shares. The Ld A.R submitted that the assessee also furnished copy of final SEBI report, wherein he and his sister have been exonerated by SEBI. However, the AO did not accept any of those documents. He concluded as under:- * The financials of M/s. Pine Animation Limited were very poor during the period when the shares were purchased by the beneficiaries. * The business profile shows that the company was not engaged into any substantial activity. * The business profile shows that the company was not having any future plans which could attract investors from all over India to invest in the company. * The whole process of rigging value of the shares on the stock market was a prearranged and a managed process so as to for booking accommodation entry of bogus LTCG in the garb of sale proceeds on sale of shares. * The shares were rigged on the stock exchange through manipulation of the stock market. * Various share brokers whose statements have been recorded and discussed in the report, confirmed the fact that the shares of M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a remand report from the assessing officer. The AO submitted that the modus operandi in generating bogus capital gains have been extensively investigated by the Investigation wing of Kolkata, Mumbai and Delhi. He submitted that the contents of the statement given by certain operators have already been incorporated in the assessment order. The AO did not offer any comment on the issue of not providing opportunity of cross examination. He also did not comment upon the documents furnished by the assessee to prove purchases and sales. 13. The remand report given by the AO was confronted with the assessee, who furnished his comments on it. In effect, the assessee submitted that the AO has not addressed various contentions raised by him. The assessee also placed reliance on the following case law to contend that the additions made by the AO should be deleted:- (a) Shri VijayrattanBalkrishnan Mittal vs. DCIT (2020)(121 taxmann.com 100)(Mum-Trib); (b) DCIT vs. Shri Prakash Chand Sharma/Smt Kalawati Sharma ITA No. 780 & 781-2019 (Jaipur) dated 18th November, 2020; (c) Shri Kunal Dedhia vs. DCIT (ITA Nos. 3893/Mum/2019 & 3901 dated 31-07-2020); (d) Mukesh Mittal (TS-271-ITAT-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under- I. The appellant is a regular investor in shares. He has also invested in other shares during the concerned period. II. The shares of Pine Animation Ltd. were purchased on the recommendation of Shri. Bhavesh Shah, who was working as sub broker with First Global stock brokers. III. This fact has also been confirmed by Shri Bhavesh Shaha in his statementrecorded u/s 131 of the IT Act on 13.09.2015. IV. No incriminating evidences were found during the search which demonstrates that the appellant has availed any accommodation entry. No cash as alleged by the AO was found during the search. V. The appellant has carried out genuine transaction and the same are supported by documentary evidence. VI. Shares have been sold online stock exchange through reputed brokers. VII. Purchases have been accepted by the AO as no addition in this regard has been made. VIII. No opportunity for cross examination to the person on whose statements the AO has relied has been provide. IX. SEBI has exonerated the appellant from charge of manipulation. SEBI also held that there was no price manipulation of shares of PAN. 19.5 I have noted that the Appellant during the course of appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ader in the share market. Hence it is not an isolated case of purchase of shares of M/s Pine Animation Ltd. The assessee had stated that he purchased the shares of above said company on the advice of his share broker Shri Bhavesh Shah, who was also examined and he also confirmed that he had advised the assessee herein to buy the shares of M/s Pine Animation Ltd. Accordingly, the ld CIT(A) concluded as under:- "19.6.4 During the assessment and appellate proceedings the appellant has furnished the brokers notes, details of payments made for the purchase, copy of bank statement etc in support of purchase. It is not in dispute that the appellant had made purchase of shares off market through preferential allotment of shares by the concerned company. The appellant has discharged his onus of proving the fact that shares purchased by him were dematerialized in Demat account and held by the appellant till the same were sold from the Demat account of the appellant. The transaction of holding the shares are reflected in the Demat account and the selling of shares are through the Demat account. In the backdrop of these facts the transaction could not be treated as non genuine merely because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lkrishna Mittal in ITA No.3248/Mum/2019 dated 01-10-2019. The Ld CIT(A) noticed that the decision rendered by Ld CIT(A) in the case of Priyanka Ankit Miglani has been upheld by the Tribunal in ITA No.2531/Mum/2021). The Ld.CIT(A) noticed that the facts prevailing in the present case and in the cases of Anuj Rajinder Miglani** and Vijayrattan Balkrishnan Mittal are identical in nature. In this regard, the Ld CIT(A) has prepared a chart showing parity of facts between the above said cases.(** decided along with Priyanka Ankit Miglani) The said chart is extracted below, for the sake of convenience:- Appellant Anuj Rajinder Miglani Vijayrattan Balkrishnan Mittal Whether regular investor or not Yes Yes Yes Company under consideration Pine Animation Ltd Pine Animation Ltd Pine Animation Ltd Share purchase Preferential allotment Preferential allotment Preferential allotment Split of shares Yes Yes Yes Purchase through cheque Yes Yes Yes Sold through First Global Stock Broking Limited Destimoney Securities Pvt.Ltd M/s Geojit BNP Paribas Financial Services Ltd Sold on BSE platform Yes Yes Yes Sale proceed received thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, till the completion of final investigation by SEBI. The main grievance of the ld. AO is that rise in share price of Pine Animation Ltd is devoid of commercial principle or market factors ; that transactions are based on mutual connivance on part of assessee and Smt. Prayanka Ankit Miglani and others operators; that assessee resorted to preconceived scheme to procure bogus long term capital gains and hence the transactions are not bonafide; that SEBI also passed an interim order in the case of Pine Animation Ltd holding that share prices were determined artificially by manipulations; that these are close circuit transactions and are pre- structured; that assessee had failed to discharge her onus cast on her ; that net worth of Pine Animation Ltd is negligible and that its share prices were artificially rigged ; that investigations prove that cash is routed through various accounts to provide these bogus long term capital gain entries. The ld. AO by making these observations proceeded to treat the sale proceeds of the shares as unexplained cash credit u/s 68 of the Act. Since the receipt of sale proceeds was treated as bogus, the ld. AO also proceeded to add estimated commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and held by the assessee till the same were sold from the Demat account of the assessee. The transaction of holding the shares are reflected in Demat account and sale of shares are through Demat account. More so, when there is no dispute regarding the purchase price and sale price of shares. Our view is further fortified by the decision of Hon'ble Jurisdictional High Court in the case of CIT vs Jamnadevi Agarwal reported in 328 ITR 656 (Bom) wherein it was held that - "From the documents produced before the Court it was seen that the shares in question were, in fact, purchased by the assessees on the respective dates and the company had confirmed to have handed over the shares purchased by the assessees. Similarly, the sale of the shares of the respective buyer was also established by producing documentary evidence. It is true that some of the transactions were off-market transactions. However, the purchase and sale price of the shares declared by the assessees were in conformity with the market rates prevailing on the respective dates, as was seen from the documents furnished by the assessees. Therefore, the fact that some of the transactions were off-market transactions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at paragraph 9 of this order in the matter of Pine Animation Limited. As regards remaining entities in the scrip of PAL, violations under SEBI Act, SCRA, PFUTP Regulations, etc., were observed and SEBI shall continue its proceedings against them. Hence, the directions issued vide Orders dated July 05, 2016, August 22, 2016, and June 02,2017 against the remaining 62 entities shall continue. 5.5.1. We find that the name of the assessee is reflected in Serial Number 38 which is part of 114 entities acquitted by SEBI, on whom clean chit has been given. 5.6. We find that the assessee had held the shares in the instant case for 16 months in the case of Pine Animation Ltd and then sold the shares in the open market at prevailing market prices. From the above order of SEBI, it is very clear that SEBI, based on its investigations and replies given by various parties, had ordered either to take action against certain parties or had acquitted certain parties on the ground that they are not involved in the price manipulation. In any case, the assessee has been duly discharged by SEBI on the ground that she is not involved in price manipulation of scrip of Pine Animation Ltd. Hence it could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to make it a chance by investing their surplus monies. They also end up with making investment in certain scrips (read penny stocks) based on market information and try to exit at an appropriate time the moment they make their profits. In this process, they also burn their fingers by incurring huge losses without knowing the fact that the particular scrip invested is operated by certain interested parties with an ulterior motive and once their motives are achieved, the price falls like pack of cards and eventually make the gullible investors incur huge losses. In this background, the only logical recourse would be to place reliance on the orders passed by SEBI pointing out the malpractices by certain parties and taking action against them. Since assessee has been finally discharged in the list of 114 entities in final order of SEBI dated 19.09.2017 after its detailed investigations, the transaction carried out by the assessee cannot be termed as bogus. We find that the revenue had primarily relied SEBI interim order dated 08.05.2015 passed in the case of Pine Animation Ltd. This SEBI Interim order is subsequently revoked on 19.09.2017 duly acquitting the assessee as stated supra. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmise, suspicion and conjecture and by making baseless allegations against the assessee herein. Now another issue that arises is as to whether the ld. AO merely on the basis of Kolkata investigation wing report could come to a conclusion that the transactions carried out by the assessee as bogus. In our considered opinion, the ld. AO is expected to conduct independent verification of the matter before reaching to the conclusion that the transactions of the assessee are bogus. More importantly, it is bounden duty of the ld. AO to prove that the evidences furnished by the assessee to support the purchase and sale of shares as bogus. This view of ours is further fortified by the decision of Hon'ble Delhi High Court in the case of PCIT vs Laxman Industrial Resources Ltd in ITA No. 169/2017 dated 14.03.2017. It is well settled that the suspicion however strong could not partake the character of legal evidence. Hence the greater onus is casted on the revenue to corroborate the impugned addition by controverting the documentary evidences furnished by the assessee and by bringing on record cogent material to sustain the addition. No evidence has been brought on record to establish any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , then, such conclusion which has been reached by the Commissioner and the Assessing Officer required a deeper scrutiny. It was also revealed during the course of inquiry by the Assessing Officer that the Calcutta Stock Exchange records showed that the shares were purchased for code numbers S003 and R121 of Sagar Trade Pvt Ltd. and Rockey Marketing Pvt. Ltd. respectively. Out of these two, only Rockey Marketing Pvt.Ltd. is listed in the appraisal report and it is stated to be involved in the modus-operandi. It is on this material that he holds that the transactions in sale and purchase of shares are doubtful and not genuine. In relation to Assessee's role in all this, all that the Commissioner observed is that the Assessee transacted through brokers at Calcutta, which itself raises doubt about the genuineness of the transactions and the financial result and performance of the Company was not such as would justify the increase in the share prices. Therefore, he reached the conclusion that certain operators and brokers devised the scheme to convert the unaccounted money of the Assessee to the accounted income and the present Assessee utilized the scheme. 6. It is in that regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he additional question cannot be said to be substantial question of law, because it arises in the context of same transactions, dealings, same investigation and same charge or allegation of accommodation of unaccounted money being converted into accounted or regular as such. The relevant details pertaining to the shares were already on record. This question is also a fall out of the issue or question dealt with by the Tribunal and pertaining to the addition of Rs.25,93,150/-. Barring the figure of loss that is stated to have been taken, no distinguishable feature can be or could be placed on record. For the same reasons, even this additional question cannot be termed as substantial question of law. 5.12. We are conscious of the decision of Hon'ble Delhi High Court in the case of Suman Poddar vs ITO reported in 112 taxmann.com 329 dated 17.09.2019 where the decision was rendered in favour of the revenue. The Special Leave Petition filed by the assessee before the Hon'ble Supreme Court in this case was dismissed by the Hon'ble Apex Court vide its order dated 22/11/2019. But we find that there is yet another decision of Hon'ble Delhi High Court in the case of PCIT vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi, Mumbai and Ahmedabad on penny stocks, which sets out the modus operandi adopted in the business of providing entries of bogus LTCG. However, the reliance placed on the report, without further corroboration on the basis of cogent material, does not justify his conclusion that the transaction is bogus, sham and nothing other than a racket of accommodation entries. We do notice that the AO made an attempt to delve into the question of infusion of Respondent's unaccounted money, but he did not dig deeper. Notices issued under sections 133(6)/131 of the Act were issued to M/s Gold Line International Finvest Limited, but nothing emerged from this effort. The payment for the shares in Smt. Prayanka Ankit Miglani and others question was made by Sh. Salasar Trading Company. Notice was issued to this entity as well, but when the notices were returned unserved, the AO did not take the matter any further. He thereafter simply proceeded on the basis of the financials of the company to come to the conclusion that the transactions were accommodation entries, and thus, fictitious. The conclusion drawn by the AO, that there was an agreement to convert unaccounted money by taking fictitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man Poddar case (supra) and Sumati Dayal case (supra) is of no assistance. Upon examining the judgment of Suman Poddar case (supra) at length, we find that the decision therein was arrived at in light of the peculiar facts and circumstances demonstrated before the ITAT and the Court, such as, inter alia, lack of evidence produced by the Assessee therein to show actual sale of shares in that case. On such basis, the ITAT had returned the finding of fact against the Assessee, holding that the genuineness of share transaction was not established by him. However, this is quite different from the factual matrix at hand. Similarly, the case of Sumati Dayal (supra) too turns on its own specific facts. The above-stated cases, thus, are of no assistance to the case sought to be canvassed by the Revenue. 13. The learned ITAT, being the last fact-finding authority, on the basis of the evidence brought on record, has rightly come to the conclusion that the lower Smt. Prayanka Ankit Miglani and others tax authorities are not able to sustain the addition without any cogent material on record. We thus find no perversity in the Impugned Order. 14. In this view of the matter, no question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat suspicion howsoever strong may be but cannot be the basis of addition except for some material evidence on record. The theory of „preponderance of probability‟ is applied to weigh the evidences of either side and draw a conclusion in favour of a party which has more favourable factors in his side. The conclusions have to be drawn on the basis of certain admitted facts and materials and not on the basis of presumptions of facts that might go against the assessee. Once nothing has been proved against the assessee with aid of any direct material especially when various rounds of investigations have been carried out, then nothing can be implicated against the assessee." 5.15. We find that the ld. CIT(A) had called for a remand report twice from the ld. AO before passing the appellate order. The remand report of the ld.AO is reproduced in pages 35 and 36 of the order of ld. CIT(A). In the remand report, while defending the assessment, the ld. AO relied on various case laws in favour of the revenue. We find that the assessee in her rejoinder had distinguished each and every case law on facts. This rejoinder is enclosed in pages 43 and 44 of the order of ld. CITA. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Hon'ble Jurisdictional High Court in the recent case of PCIT vs Ziauddin A Siddique in Income Tax Appeal No. 2012 of 2017 dated 04.03.2022 had held as under:- "2. We have considered the impugned order with the assistance of the learned Counsels and we have no reason to interfere. There is a finding of fact by the Tribunal that the transaction of purchase and sale of the shares of the alleged penny stock of shares of Ramakrishna Fincap Ltd ("RFL") is done through stock exchange and through the registered Stock Brokers. The payments have been made through banking channels and even Security Transaction Tax ("STT") has also been paid. The Assessing Officer also has not criticized the documentation involving the sale and purchase of shares. The Tribunal has also come to a finding that there is no allegation against assessee that it has participated in any price rigging in the market on the shares of RFL. 3. Therefore we find nothing perverse in the order of the Tribunal. 4. Mr. Walve placed reliance on a judgement of the Apex Court in Principal Commissioner of Income Tax (Central)- 1 vs. NRA Iron & Steel (P) Ltd (2019) 103 taxmann.com 48 (SC) but that does not help ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on the information received by him from Calcutta Stock Exchange found that the transactions were not recorded there. He therefore held that the transactions were bogus. The Hon'ble High Court, affirmed the decision of the Tribunal wherein it was found that the chain of transactions entered into by the assessee have been proved, accounted for, documented and supported by evidence. It was also found that the assessee produced the contract notes, details of demat accounts and produced documents showing all payments were received by the assessee through banks. On these facts, the appeal of the revenue was summarily dismissed by Hon'ble High Court. In the instant case of the assessee before us, no such enquiries were even sought to be made by the ld. AO with the stock exchange to understand whether the transactions carried out in online platform of BSE were genuine or not. Hence the assessee's case before us stands on a better pedestal. 5.21. We find that the Hon'ble Punjab & Haryana High Court in the case of PCIT (Central), Ludhiana vs Prem Pal Gandhi reported in 401 ITR 253 (P&H) in Para 4 & 5 of its order and the PCIT (Central), Ludhiana vs Hitesh Gandhi in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of one year, the share price has risen from Rs.5 to 55 and from 9 to 160 and one person was holding the shares much prior to that start of rise of the share, then how it can be inferred that such person entered into sham transaction few years ago and prepared for getting the benefit after few years when the share will start rising steeply. In present case even there was no reason for such suspicion when the shares were purchased years before the unusual fluctuation in the share price. Here in this case, we have given example of one of the Tax Appeal wherein the shares were purchased in the year 2004 and were sold in the year 2006, which is said to be one of the case wherein the gap in the purchase and sale of the shares was narrowest. In other cases as we have noticed from the various orders of the C.I.T(Appeals) that, the shares of some of the companies were purchased by the assessees even five years ago from the time of sale and those purchasers were already disclosed in the Balance Sheet of the assessee, then from any angle, it is proved that the assessees had held the shares much prior to 12 months of the sale of the shares. 12. Hence, these Appeals are dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ann.com 341 (Mumbai Trib) dated 21.09.2021 in support of his contentions. We have gone through the said decision and we find that the said decision was rendered in the context of receipt of share capital and share premium by that assessee wherein the genuineness of transactions and creditworthiness were not proved by that assessee. This is factually distinguishable with the facts of the assessee before us. Hence reliance placed on this decision by the ld. DR does not advance the case of the revenue. 5.25. The ld. DR relied on the decision of Hon'ble Delhi High Court in the case of CIT vs Jansampark Advertising & Marketing (P) Ltd reported in 375 ITR 373 (Del) in support of his contentions. On perusal of the said judgement, it only postulates that the appellate authority should conduct enquiry on its own or by calling a remand report from the ld. AO and cannot merely brush aside his co-terminus powers by stating that the ld. AO had not carried out any enquiry. This decision was rendered in the context of lack of proper enquiries by the ld. AO, which is not the facts of the case in the instant appeal before us. It is settled law that the ld. CIT(A) has got enhancement powers an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee from the stock exchange through the SEBI registered share broker by account payee cheques through regular banking channels. We find that the three ingredients of section 68 of the Act are duly fulfilled by the assessee in the instant case. Hence there is no question of making any addition as unexplained cash credit u/s 68 of the Act in the instant case. 5.27. Considering the totality of the facts and circumstances of the instant case and respectfully following the judicial precedents relied upon hereinabove, we do not find any infirmity in the order of the ld. CIT(A) granting relief to the assessee by deleting the impugned additions on account of denial of exemption for long term capital gains u/s 10(38) of the Act and estimated commission @ 6% against the same. Accordingly, the grounds raised by the revenue are dismissed." 22. We noticed earlier that the Ld.CIT(A) has given a clear cut finding that the facts prevailing in the instant case are identical with the facts of the above said case. Hence, we are of the view that the Ld CIT(A) was justified in following the above said decision, wherein the co-ordinate bench has rendered its decision following the binding decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding of opportunity of cross examination is not mandatory, yet the important point here is that it is not the case of the AO that those persons had specifically implicated the assessee that he was involved in rigging of prices. Hence, there is no evidence available with the AO to prove that the assessee was part of the group, which were manipulating the prices of shares. The fact that the assessee was not part of the group, which were manipulating the prices of shares has been proved by the final report of SEBI, wherein the assessee and her sister have been exonerated from the initial allegations of being part of the group. 26. Thus, we notice that the documents furnished by the assessee to support the claim of purchase and sale of shares were not found fault with by the AO. Further, we notice that the AO has not proved that the assessee was part of the group, which was manipulating the prices of shares. These two aspects have been considered by the Hon'ble Bombay High Court in the cases of Shyam R Pawar (supra) and Ziauddin A Siddique(supra). 27. Further, the Ld.CIT(A) has also given a finding that the assessee is a regular investor in shares. We also notice that a statement wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f whatsapp chat. The facts relating thereto are discussed in brief. The revenue carried out a survey operation in the hands of M/s Krazee properties P Ltd. During the course of survey operation a document was impounded, which indicated a trend of accommodation entries transacted between Shri Jayant Shamji Chheda and the assessee. It appeared to be a print out of the chat between them using whatsapp chat application. The AO observes as under in the assessment order in this regard:- "The said conversation between the assessee Shri Pankaj Dhanji GosharandShri Jayant Shamji Chedda over the whatsapp application speaks of certain loan of Rs.5,00,00,000/- advanced by the assessee Shri Pankaj Dhanji Goshar to Shri Jayant Shamni Chheda. It is evident from the paper seized that assessee Shri Pankaj Dhanji Goshar is mentioning about some 2 crores entry cheque which was returned to the company owned by Shri Jayant Shamji Chheda before March. The survey action was carried out on 10th September, 2015 in the premises of M/s Krazee Properties P Ltd and thus presumably the cash was given to Shri Jayant Shamji Chheda before March, 2015 in lieu of accommodation entry of Rs.2 crores received by you ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation, appellant had requested Ld AO to provide confirmation from Whatsapp Service Provider that such conversation between the appellant and Jayant Chheda had been exchanged and extracted from his mobile only. But no such confirmation was provided." However, the Ld.CIT(A) took the view that the assessee had confirmed that the contents of his I phone 6 plus were copied in 2 portable Hard disk by the forensic team and the same were marked as "Annexure A-4". The Ld. CIT(A), accordingly, took the view that the print out of the whatsapp chat impounded in the survey operation was backed by the data copied from the phone of the assessee. The whatsapp chat mentioned that the assessee has given back 2 crores entry cheque against which cash of 2 crores was to be received. The ledger account also refers to the above said amount. Accordingly, the ld CIT(A) held that there were cash transactions between the assessee and Shri Jayant Shamji Chheda. Accordingly, the Ld CIT(A) confirmed the addition. The assessee is aggrieved. 34. The Ld A.R submitted that the assessee had financial transactions with Shri Jayant Chheda and the relevant details were furnished to the AO. The Ld.CIT(A) has also ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dger copy to you which is self-explanatory, Out 5 Cr loan 2 Cr was return before March by you & 2 Cr entry cheque was return to your company before March So actual loan reduce to 3 Cr which you have return yesterday & 2 Cr Cash is pending towards returning entry cheque. Regards Good Morning I'm sending back cash of 50 Lakhs You firstly satisfy what I say is correct then only you send me 2 Cr cash of entry revered, Have a nice day Regards Delivered 50 Lakhs at home Jayant Chheda Yes I will talk u later Pankaj D. Goshar: Sorry for delay I m reaching in 5 min Thanks for resolving matter. Jayant Chheda: It may duty to honour u Pankaj D. Goshar: You are highly committed and humble Human Jayant Chheda: Thank for your Application Pankaj D. Goshar As submitted by Ld A.R, these whatsapp chat does not contain any dates. Further, it is found from the premises of a third party. Hence, we are unable to understand as to how the AO considered this document as relating to the year relevant to AY 2015-16. (b) We also examined the notice u/s 142(1) of the Act issued by the AO and notice that the AO has not raised any query with regard to the amount of Rs.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard, the Ld A.R placed reliance on the decision rendered by Hon'ble Supreme Court in the case of Anvar P V vs. P.K.Basheer and Others (Civil Appeal No.4226 of 2012)(2014)(10 SCC 473)(SC), wherein it was held that the certificate prescribed u/s 65B(4) of the Indian Evidence Act is compulsory. This two member decision of Hon'ble Supreme Court was later approved by three judges Bench of Hon'ble Apex Court in the case of Arjun Pandit Rao Khotkar vs. Kailash Khushan Rao (2020)(4 SCC (civil) -3 judges). In the present case, the said certificate has not been obtained. (f) We have earlier extracted the observations made by the AO in the assessment order with regard to this addition. The conclusion arrived by the AO are extracted here again at the cost of repetition:- ".......The survey action was carried out on 10th September, 2015 in the premises of M/s Krazee Properties P Ltd and thus presumably the cash was given to Shri Jayant Shamji Chheda before March, 2015 in lieu of accommodation entry of Rs.2 crores received by you on some dates in F.Y. 2014-15." It can be noticed that the AO himself was not sure that the alleged transactions pertained to the year relevant to AY 2015-16. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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