2018 (9) TMI 1783

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....at the LTCG claim of the assessee was bogus and he added the same to the assessee's income. On appeal, the Ld. CIT(A) confirmed the order of AO. Aggrieved, assessee is before us. 3. We have heard rival submissions and gone through the facts and circumstances of the case. At the time of hearing, Ld. AR brought to our notice that in a similar case wherein the assessee had purchased shares of M/s. Tuni Textile Mills Ltd. and sold the same in AY 2013-14 the Tribunal has deleted the addition in the case of Kiran Kothary, HUF Vs. ITO in ITA No. 443/Kol/2017, AY 2013-14 by order dated 15.11.2017 wherein the Tribunal in that case has held that sale of shares of M/s. Tuni Textile Mills Ltd. was a genuine transaction. The Ld. DR, on the other hand, could not controvert this fact which was brought to our notice in respect of sale of shares of M/s. Tuni Textiles Mills Ltd. that the Tribunal in similar case for the same assessment year has dealt similar addition made by the AO/Ld. CIT(A) in respect of the claim of the assessee of LTCG on sale of share of M/s. Tuni Textile Mills Ltd. which is reproduced as under: "9. We have heard the rival submissions and perused the records. We note that in....

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....est that the assessee dealt with the said entry operator Shri Manish Baid, who is said to have stage managed and undertaken the entire transactions. We also find that the assessee has not dealt with any person or broker named in question no.28 of the statement which has been recorded on oath by the survey team and which has been reproduced by the ld. CIT(A) from pages 31 to 36 of the impugned order(Question no.28 finds place in page-35 of the impugned order). We therefore find merit in the submissions of the assessee that the statement recorded on oath during the survey cannot be the sole basis for adverse finding against the assessee. For this we rely on the decision of the Hon'ble Supreme Court in the case of CIT vs Khader Khan Son 352 ITR 480 (SC) wherein it has been held that section 133A (survey) does not empower any income tax authorities to examine any person on oath, hence any such statement lacks evidentiary value and any admission made during the survey cannot by itself be made the basis of addition. We therefore hold that the statement of Shri N.P.Surekha recorded on oath during the survey proceedings cannot be the sole basis to make the impugned addition. We note that t....

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....against the assessee nor against the brokers to whom the assessee dealt with the purchase and sale of shares in question. Thus the AO has failed to bring on record any material contained in the purported reports which are having so called adverse impact on the assessee. We further find that the company under scanner was having share Capital as on 31.03.2013 of Rs. 13.18 crores and was having assets worth Rs. 24.25 crores and a turn over of Rs. 19.32 crores and profit of Rs. 1.35 crores. Thus the allegation that these companies did not have financial credentials is not correct and so is perverse and therefore we do not subscribe to the said finding and necessarily negate the finding. At the cost of repetition, we find that the transactions of sale of shares by the assessee was duly backed up by material/evidence including contract notes, demat statement, bank account reflecting transactions, the stock brokers have confirmed the transactions (pages 24-25 of the paper book), the shares having been sold on the online platform of the stock exchange and each trade of sale of shares were having unique trade number and trade time. It is not the case of the AO that the shares which were s....

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....rmity in the order of the ld. CiT(A), who has rightly allowed the claim of the assessee. This ground no.1 of the revenue is dismissed." We agree with the reasoning of the tribunal on this point also. We do not find any reason to interfere with the impugned order. The suggested question, in our opinion do not raise any substantial question of law." 9.3. In the light of the documents stated i.e. (i to v) in Page14(supra) we find that there is absolutely no adverse material to implicate the assessee to the entire gamut of unfounded/unwarranted allegations leveled by the AO against the assessee, which in our considered opinion has no legs to stand and therefore has to fall. We take note that the ld. DR could not controvert the facts which are supported with material evidences furnished by the assessee which are on record and could only rely on the orders of the AO/CIT(A). We note that the allegations that the assesse/brokers got involved in price rigging/manipulation of shares must therefore consequently fail. At the cost of repetition, we note that the assessee had furnished all relevant evidence in the form of bills, contract notes, demat statement and bank account to prove the gen....