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TMI Blog2024 (3) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... r the facts of the present case, on 15.11.2013, the respondent-assessee had purchased 62,800 shares in Alps Motor Finance Limited ["the Company"] at the rate of Rs. 2 per share from a person namely, Sh. Vishal Yadav and the total consideration amounting to Rs. 1,25,600/- in that regard was paid by the respondent-assessee in cash. After a considerable period of time, on 30.07.2014, the respondent-assessee sold 17,500 shares at the rate of Rs. 430 each through a broker i.e., Century Finvest Pvt. Ltd. During the period between 07.08.2014 to 13.10.2014, the remaining shares were also sold by the respondent-assessee at the rate of Rs. 55 per share and the said transaction was also facilitated by the same broker. The payments for both the sale transactions appear to have been made using the banking channels. 3. Thereafter, on 26.08.2015, the respondent-assessee filed his Income Tax Return ["ITR"], declaring his income to the tune of Rs. 24,29,280/-. In the said ITR, the respondent-assessee also claimed an exemption under Section 10(38) of the Act on the ground of Long-Term Capital Gains ["LTCG"] on sale of the aforementioned shares. The case of the respondent-assessee was selected for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redibility. iii. The opening of the respondent-assesse's account with the broker was an arrangement to claim exemption in LTCG. iv. The statement of Sh. Bikash Surekha, who ran the entities which also purchased the shares of the Company, suggested that these entities were used to provide accommodation entry for bogus LTCG. 8. Learned counsel further submitted that the ITAT has failed to appreciate the concurrent findings of the AO and the CIT (A), more importantly the independent enquiry conducted by the AO, and has erroneously rejected the aforesaid considerations of the AO. 9. Learned counsel appearing for the respondent-assessee, while opposing the submissions made by the learned counsel for the Revenue, submitted that the present appeal does not raise any substantial question of law. He contended that the issues raised by the Revenue are completely factual in nature and do not warrant any consideration at all. 10. He submitted that the Revenue has inappropriately placed reliance on the statements of two brokers and Mr. Bikash Surekha as they do not allude to the respondent-assessee and thus, there is no direct link with the respondent-assessee's case. According to him, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the ITAT, coupled with the fact that no irregularity was highlighted by the Securities and Exchange Board of India pertaining to the transaction of the scrips of the Company, would lead us to the conclusion that there is nothing adverse against the respondent-assessee which could establish a fictitious LTCG to claim exemption at the behest of the respondent-assessee. Rather, the arguments put forth by the Revenue are mere findings of fact. 16. In any case, the issues raised by the Revenue in the present appeals already stand covered by the decision of this Court in the case of PCIT v. Krishna Devi [2021 SCC OnLine Del 563], wherein, under similar facts and circumstances, it was held that the preponderance of probabilities cannot be a ground to reject the evidence put forth by the parties. The relevant paragraphs of the said decision read as under: - "11. On a perusal of the record, it is easily discernible that in the instant case, the AO had proceeded predominantly on the basis of the analysis of the financials of M/s Gold Line International Finvest Limited. His conclusion and findings against the Respondent are chiefly on the strength of the astounding 4849.2% jump in shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rought on record, held that the Respondent had successfully discharged the initial onus cast upon it under the provisions of Section 68 of the Act. It is recorded that "There is no dispute that the shares of the two companies were purchased online, the payments have been made through banking channel, and the shares were dematerialized and the sales have been routed from de- mat account and the consideration has been received through banking channels." The above noted factors, including the deficient enquiry conducted by the AO and the lack of any independent source or evidence to show that there was an agreement between the Respondent and any other party, prevailed upon the ITAT to take a different view. Before us, Mr. Hossain has not been able to point out any evidence whatsoever to allege that money changed hands between the Respondent and the broker or any other person, or further that some person provided the entry to convert unaccounted money for getting benefit of LTCG, as alleged. In the absence of any such material that could support the case put forth by the Appellant, the additions cannot be sustained. 12. Mr. Hossain's submissions relating to the startling spike in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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