2018 (6) TMI 1329

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....oner of Income Tax (Appeals)-5, Chennai, in ITA No.132/CIT(A)-5/2016-17 dated 19.09.2017 for the AY 2011-12. 2. Mr.N.Madhavan, ACIT, represented on behalf of the Revenue and Ms.Sushma Harini.A, Adv., represented on behalf of the assessee. 3. As both the appeals are related to the same assessee and are on identical issues, the same are being disposed off by this common order. 4. In the assessee's appeal, the assessee has raised the following grounds: 1. The order of the Ld. CIT(A), is erroneous, opposed to law and facts and liable to be cancelled in full. 2.1 The CIT(A) erred in upholding the jurisdiction of the AO in re-opening the assessment u/s.147, in the absence of any tangible material brought on record to sh....

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.... assessee had filed his return of income, wherein, the assessee had claimed the benefit of exemption u/s.10(38) of the Act in respect of the Long Term Capital Gains in respect of the sale of the shares of M/s.Bakra Pratisthan Ltd., (in short "M/s.BPL") to an extent of Rs. 52,87,500/- for both the years together with break-up being Rs. 35,25,000/- for the AY 2010-11 and Rs. 17,62,500/- for the AY 2011- 12. It was a submission that the assessee had purchased 15000 shares of M/s.BPL @ Rs. 20/- per share from M/s.Alishan Binimay Pvt. Ltd., (in short "M/s.ABPL"), Kolkata, for a consideration of Rs. 3.00 lakhs on 24.04.2008. The shares were demated with M/s.Stock Holding Corporation of India Ltd., and sold through Shri Ashok Kumar Kayan, Stock....

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....assessee's claim of exemption u/s.10(38) was liable to be allowed. 7. In reply, the Ld.DR vehemently supported the order of the AO & the Ld.CIT(A). It was submitted by the Ld.DR that the Ld.CIT(A) has also enhanced the assessment in so far as the entire sale proceeds of M/s.BPL was treated as the income of the assessee. It was a submission that in the statement recorded from Shri Ashok Kumar Kayan, it has been admitted by him that he was providing bogus Long Term Capital Gains entries to interested persons and the assessee's name had been specifically identified along with his PAN as one of the beneficiaries to the bogus transaction. It was a submission that the order of the Ld.CIT(A) & the AO was liable to be sustained. 8. We have co....

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....ovisions of Sec.40A(3)? Was there adequate cash availability in the books of the assessee on 24.04.2008? Did the assessee travelled to Kolkata? How was the transaction done? Who applied for the demating of the shares? When were they demated? When were the shares transferred to the demat account of the assessee? To whom were the shares sold during the Assessment Years 2010-11 & 2011-12? When were the cheques received by the assessee? From whom did the assessee received the cheques? Was there any cash deposit immediately prior to the issuing of the cheque from the bank account of the purchaser of the shares of the assessee? 11. A perusal of the Assessment Order at Para No.7.1 shows that in the Written Submissions, the assessee states that ....

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....ch had lead to the share value of the company to go up from Rs. 20/- to Rs. 352/- in a period of two years. This would clearly be a case where the share value of the company was hitting the circuit breaker of the stock exchange on a daily basis and obviously it would have drawn attention. This being so, as the facts are not coming out of the Assessment Order nor the order of the Ld.CIT(A) nor from the side of the assessee, we are of the view that the issues in this appeal must be restored to the file of the AO for re-adjudication after granting the assessee adequate opportunity to substantiate its case and we do so. 12. The statement recorded by the Revenue from Shri Ashok Kumar Kayan cannot be used as an evidence against the assessee....