TaxTMI 
TaxTMI 
2018 (12) TMI 561
X X X X Extracts X X X X
X X X X Extracts X X X X
...., needs to be quashed. 2. The Commissioner of Income-tax (Appeals) - 6, Mumbai (hereinafter referred to as the CIT(A)) erred in upholding the action of the Assessing Officer in making an addition of a sum of Rs. 83,45,689 under section 68 of the Act holding the capital gains on sale of long-term capital assets being, shares of Rutron International Ltd to be non-genuine and thereby not allowing exemption under section 10(38) of the Act. The appellant contends that on the facts and in the circumstances of the case and in law, the ClI(A) ought not to have upheld the action of the Assessing Officer in considering the capital gains on sale of long-term capital assets being, shares of Rutron International Ltd to be non-genuine inasmuch as the said shares have been purchased during an earlier year are investments; the same being sold shall necessarily give rise to capital gains and the impugned shares being long-term capital asset, the capital gains Rs. 83,45,689 are long-term capital gains in respect of which the Assessing Officer ought to have allowed exemption of section 10(38) of the Act; accordingly, the impugned addition under section 68 of the Act is not justified....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... section 10(38) of the Act as per details below: Scrip Name : Rutron International Ltd. Sale date No. of shares sold Sale consideration Purchase date Purchase Cost Capital gain 14.02.2013 5000 1100624.69 2.12.2011 50000 1050624.69 18.02.2013 4000 903408.68 2.12.2011 40000 863408.68 19.02.2013 5000 1132517.10 2.12.2011 50000 1082517.10 01.03.2013 14370 1070535.64 2.12.2011 43700 1026835.64 7.03.2013 630 158575.89 2.12.2011 6300 152275.89 08.03.2013 5000 1252520.78 2.12.2011 50000 1202520.78 12.03.2013 2000 515021.11 2.12.2011 20000 495021.11 13.03.2013 6000 1543173.2 2.12.2011 60000 1483173.20 18.03.2013 4000 1029311.86 2.12.2011 40000 989311.86 6. The AO came to the conclusion that the said capital gain of Rs. Rs. 83,45,689/- on the sale of share of Rutron International Ltd. was earned by the assessee through connivance with the operator to avoid taxes. The AO also noted that the price of the shares of the said company which was less than Rs. 1 in June 2012 rose to Rs. 26 in March 2013 in less than ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wing the same order the addition made in the case of the assessee by treating long term capital gain as bogus has to be deleted. 8. When the issue was confronted to the Ld. D.R. whether the decision rendered by the co-ordinate Jaipur bench of the Tribunal was delivered on the identical facts involving the shares of sales of Rutron International Ltd. from which the assessee derived LTCG ,the Ld. D.R. candidly admitted that the said issue also arose out of the same racket in which the assessee made capital gain by selling the share of Rutron International Ltd., however, the Ld. D.R. relied heavily on the order of authorities below and submitted that all these transactions were thoroughly investigated by the investigation wing of the department and found that the present assessee was beneficiary of such bogus long term capital gain and therefore prayed before the Bench that the appeal of the assessee should be dismissed. 9. We have heard the rival submissions of both the parties and perused the material on record including the decision of the co-ordinate bench of the Tribunal in ITA Nos.443 & 444/JP/2017 A.Y. 2013-14 and 2014-15 in the case of Meghraj Singh Shekhawat vs. DCIT. W....
X X X X Extracts X X X X
X X X X Extracts X X X X
....see and referred to the statement of Shri Anil Agarwal recorded by Investigation Wing Kolkata u/s 132(4) of the Act and held that since, Shri Anil Agarwal was involved in providing bogus long term capital gain in respect of the shares of the companies including M/s Rutron International Ltd., therefore, the transaction of the assessee showing the long term capital gain from sale of shares of M/s Rutron International Ltd. is bogus and consequently the AO made an addition of Rs. 1,32,56,113/- to the total income of the assessee u/s 68 of the Act. Aggrieved by the action of the AO the assessee filed the appeal before the ld. CIT(A) however, the ld. CIT(A) has confirmed the treatment of long term capital gain as bogus transaction and consequential addition made by the AO. 3. Before us, ld. AR of the assessee has submitted that the Assessing Officer has made this addition solely on the basis of the statement of Shri Anil Agarwal recorded statement u/s 132(4) by the Investigation Wing, Kolkata without any corroborative evidence to show that the assessee has converted its unaccounted income in the long term capital gain. He has further contended that even in the said statement rec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....shares cannot be treated as bogus transaction. Hence, ld. AR has pleaded that the addition made by the AO be deleted and the claim of the assessee accepted. In support of his contention he has relied upon the Hon'ble jurisdiction High Court dated 11-09-2017 in case of CIT vs. Smt. Pooja Agrawal 385/2011 wherein the Hon'ble High Court has held that when the assessee furnished all supporting documents including the cheque, copy of contract note and D-mat account etc. then, the transaction entered into cannot be denied simply on the ground that in his statement the assessee denied made any transaction. Whereas in this case, the assessee never denied having these transactions but the AO has solely relied upon the statement of Shri Anil Agrawal which was recorded by the Investigation Wing, Kolkata without giving an opportunity of cross examine to the assessee. The ld. AR has relied upon the decision of Hon'ble Pubjab and Haryana High Court dated 18.01.2018 in case of CIT vs. Prem Pal Gandhi in ITA No. 95/2017. He has also relied upon the decision of the Coordinate Bench of this Tribunal dated 31.01.2018 in case of Pramod Jain & others vs. DCIT in ITA No. 368/JP/2017 and submitte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9.02.2012. It appears that the said payment was made by the assessee at the time of applying for allotment of shares and subsequently the shares were allotted by the company on 01.03.2012. Thus, it is clear that the shares acquired by the assessee is not a trading transaction but these were allotted directly by the company under the preferential issue and hence, the role of intermediate is ruled out. Once, the shares were directly allotted by the company M/s Rutron International Ltd. against the consideration paid by the assessee through cheque. Then the role of any intermediately particular of Shri Anil Agarwal is said allotment does not appear from any of the record. Even as per the statement as reproduced by the Assessing Officer in the assessment order Shri Anil Agrawal has stated that he is having business nexus with the companies including M/s Rutron International Ltd. The department put a question about the association with as many as 13 companies and in response to that he has accepted that he is having business nexus with these companies including M/s Rutron International Ltd. The nature of service was also explained by Shri Anil Agrawal as the consultancy services. For re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing consultancy services. Hence, he has not stated anything about providing bogus long term capital gain in respect of the equity shares of M/s Rutron International Ltd. A business nexus with any company will not automatically lead to the conclusion that the shares allotted by the other company is bogus transaction. As per question no. 5 and answer thereto it is clear that Shri Anil Agrawal was not the Director of M/s Rutron International Ltd. but he has stated to know some of the directors of these companies including M/s Rutron International Ltd. Hence, from this relevant part of the statement of Shri Anil Agrawal it cannot be inferred that he has provided the bogus long term capital gain from purchase and shares of equity shares of M/s Rutron International Ltd. much less the specific transaction of preferential issue allotment of shares by the company itself to the assessee. Further, though he has explained the modus oprendi of providing bogus long term capital gain entries in the equity shares however, when the transaction was not routed through Shri Anil Agrawal and the shares were allotted directly by the company to the assessee at par on face value then the same cannot be co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....estigation Wing, Kolkata however, without going into controversy of the retraction of the statement we find that the statement cannot be used by the AO without giving an opportunity to cross examination of Shri Anil Agrawal. The Coordinate Bench of this Tribunal in case of Pramod Jain and Others vs. DCIT (supra) whole dealing with an identical issue as held in para 6 to 8 as uder:- "6. We have considered the rival submissions as well as relevant material on record. The assessee purchases 800 equity shares M/s Gravity Barter Ltd. for a consideration of Rs. 4 lacs the assessee has produced the purchase bill of the shares purchase from M/s Winall Vinimay Pvt. Ltd. which shows that the assessee purchase 800 equity shares having face value of Rs. 10/- each M/s Gravity Barter Pvt. Ltd. in allots of 400 each for a consideration of Rs. 2 lacs each total amount to Rs. 4 lacs @ Rs. 500 per shares. The purchase price of Rs. 500 per share itself shows that it was not a transaction of purchase of penny stock. These shares were duly reflected in the balance sheet as 31.03.2011. The payment of the purchase consideration was made by the assessee vide cheque on 17.05.2011 which is evident ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....holding of shares M/s Gravity Barter Ltd. the shares of the M/s Oasis Cine Communication Ltd. could not be issued or allotted to the assessee. Therefore, holding of the shares by the assessee at least at time of amalgamation took place and shares of the M/s Oasis Cine Communication Ltd. on 04.02.2012 cannot be doubted. Moreover, these shares were dematerialized by the assessee in the Demat account, therefore, on the date of allotment of share of M/s Oasis Cine Communication Ltd the assessee was holding these shares and prior to that the assessee was holding the shares of M/s Gravity Barter Ltd. on exchange of the same the shares of M/s Oasis Cine Communication Ltd. were issued to the assessee. The Assessing Officer has doubted the genuineness of the transactions however, once the holding of shares of the assessee at the time of the same were issued by M/s Oasis Cine Communication Ltd. is not in dispute then the holding of shares of M/s Gravity Barter Ltd. also cannot be dispute because of the fact that without holding of the same the shares of M/s Oasis Cine Communication Ltd. could not be issued to the assessee. Once, the shares were held by the assessee then, the question of genu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ares allotted to the assessee vide share certificate dated 31.03.2011 were dematerialized on 21.10.2011, therefore, on the date of dematerialization of the shares the holding of the shares of the assessee cannot be doubted and hence the acquisition of the shares of the assessee cannot be treated as a bogus transaction. Nobody can have the shares in his own name in demant account without acquiring or allotment through due process hence, except the purchase consideration paid by the assessee holding of shares cannot be doubted when the assessee has produced all the relevant record of issuing of allotment of shares, payment of share application money through bank, share certificate and demat account showing the shares credited in the demat account of the assessee on dematerialization. The said company M/s Paridhi Properties Ltd. was subsequently merged with M/s Luminaire Technologies Ltd. vide scheme approved by the Hon'ble Bombay High Court order dated 27.07.2012. Hence, the assessee got allotted the equity shares of M/s Luminaire Technologies Ltd. as per swap ratio approved in the scheme and consequently the assessee was allotted 5 lacs share of Rs. 1/- each on M/s Luminaire Tec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....come Tax act 1961 to him also for cross examination. We also request your good self to kingly provide us the copy of statements of Shri Deepak Patwari along with the other relevant documents. Please note that the assessee is ready to bear the cost of his travelling in this regard." It is manifest from the assessee's reply to show cause notice that the assessee had specifically demanded the cross examination of Shri Deepak Patwari however, the Assessing Officer did not offer the opportunity to the assessee to cross examine Shri Deepak Patwari. Further, the AO asked the assessee to produce the Principal Officers of the M/s Gravity Barter Ltd. and M/s Paridhi Properties Ltd. However, in our view if the Assessing Officer wanted to examine the principal Officers of those companies he was having the authority to summon them and record their statements instead of shifting burden on the assessee. It is not expected from the assessee individual to produce the principal Officers of the companies rather the AO ought to have summoned them if the examination of the officers were considered as necessary by the AO. Hence, it was improper and unjustified on the part of the AO to asked....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17.03.2005 was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions. 8. In view the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the Show Cause Notice." Therefore, the statement of witness cannot be sole basis of the assessment without given an opportunity of cross examination and consequently it is a serious flaw which renders the order a nullity. The Mumbai Special of the Tribunal in case of GTC Industries vs. ACIT (supra) had the occasion to consider the addi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to establish a link that GTC actually had some kind of a share in such secret money. It is quite a trite law that 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 presumption of facts that might go against assessee. Once nothing has been proved against the assessee with aid of any direct material especially when various rounds of investigation have been carried out, then nothing can be implicated against the assessee." Therefore, when the Assessing Officer has not brought any material on record to show that the assessee has paid over and above the purchase consideration as claimed and evident from the bank account then, in the absence of any evidence it cannot be held that the assessee has introduced his own unaccounted money by way of bogus long term capital gain. The Hon'ble Jurisdiction High Court in cas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons. Further as per the report of DCIT, Central Circle-3 Sh. P.K. Agarwal was found to be an entry provider as stated by Sh. Pawan Purohit of B.C. Purihit and Co. group. The AR made submission before the AO that the fact was not correct as in the statement of Sh. Pawan Purohit there is no mention of Sh. P. K. Agarwal. It was also submitted that there was no mention of Sh. P. K. Agarwal in the order of Settlement Commission in the case of Sh. Sushil Kumar Purohit. Copy of the order of settlement commission was submitted. The AO has failed to counter the objections raised by the appellant during the assessment proceedings. Simply mentioning that these findings are in the appraisal report and appraisal report is made by the Investing Wing after considering all thematerial facts available on record does not help much. The AO has failed to prove through any independent inquiry or relying on some material that the transactions made by the appellant through share broker P.K. Agarwal were non-genuine or there was any adverse mention about the transaction in question in statement of Sh. Pawan Purohi. Simply because in the sham transactions bank a/c were opened with HDFC bank and the appella....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed as all the entries are part of the bank account of the assessee and the assessee dematerialized the shares in the D-mat account which is also an independent material and evidence cannot be manipulated. Therefore, the holding of the shares by the assessee cannot be doubted and the finding of the AO is based merely on the suspicion and surmises without any cogent material to show that the assessee has introduction his unaccounted income in the shape of long term capital gain. We find that the ld. CIT(A) has also referred to SEBI enquiry against the M/s Anand Rathi Share and Stock Brokers Ltd. However, we note that the said enquiry was regarding financial irregularities and use of fund belonging to the clients for the purpose other than, the purchase of shares on behalf of the clients. Therefore, the subject matter of the enquiry has no connection with the transaction of bogus long term capital gain. The decisions replied upon the ld. DR in case of Sanjay Bimalchand Jain vs. Pr. CIT (supra) is not applicable in the facts of the present case as the said decision is in respect penny stock purchase by the assessee from a persons who was found to be indulged in providing bogus capital ....