TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 108
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....no way are related to purchase and / or sale transaction in this case. The copy of their statement was not given nor any opportunity to Cross examine them was allowed. Following established case laws and precedent, the reliance by ITO on these statements in not justified. On facts also, they may do anything elsewhere but how their statement relates to appellant, is not proved. 4. Case laws directed related of various ITAT and High Court cited by the appellant have not been relied upon by the ITO / CIT (A) nor even discussed. In is place various unrelated case laws have been mentioned which on facts and question are not related to this case or are general in nature. 3. Facts of the case, in brief, are that the assessee is an individual and filed its return of income on 19.07.2014 declaring total income of Rs. 5,33,940/-. The assessee is a partner in the firm M/s. J. K. Enterprises and was deriving remuneration and interest income from it and also claimed an amount of Rs. 21,65,606/- as exempted income of LTCG under section 10 (38) of the Act. During the course of assessment proceedings the Assessing Officer observed from various details filed by the assessee that the assessee h....
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....ogus Long Term Capital Gain. 3.2 The Assessing Officer observed that Sh. Nikhil Jain Director M/s. Abhinandan Stock Broking Pvt. Ltd. and M/s. ASB Commodities Pvt. Ltd. in his statement recorded during the course of survey under section 133A of the Act has elaborately furnished the modus operandi of this practice of providing Long Term Capital Gain/Long Term Capital Loss by way of accommodation entries of various bogus/penny stock scrips using various paper/shell companies. In this statement, Sh. Nikhil Jain has provided a list where the scrip TURBO TECH-504358 along with other scrips also finds a mention at serial no. 27. 3.3 The Assessing Officer further observed that Sh. Sanjay Vora in his statement recorded during the course of survey under section 133A of the Act was confronted in question no. 60 with the list of clients using the brokerage of the company Anand Rathi Share & Stock Broker involved in bogus LTCG, where the name of M/s Turbo Tech Engineering Ltd. is appearing. In view of the above and rejecting the various explanation given by the assessee and relying on various decisions, the Assessing Officer held that the assessee has entered into colourable device for avoid....
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....fronted to the assessee. Referring to the following decisions he submitted that the addition made by the Assessing Officer and sustained by the CIT(A) is not justified. 1. Kolkata Bench C in DCI Vs. Sunita Khemka in ITA No.714 to 718/Kol/2011 order dated 28/10/2015 2. Ahmedabad Bench in DCIT Vs. Vineet Sureshchandra Agarwal in ITA No.1442/Ahd/2013 and Co/Ahd /2013 order passed dated 06.01.2017. 3. Mumbai Bench E in Sunil Prakash Vs. ACIT ITA No.6494/Mum/2014 order dated 08.03.2017 4. Ahemdabad Bench B in Pratik Suryakant Shah Vs. ITO (2017) 77 taxmann.com 260 (Ahd). 5. Mumbai Bench in Mukesh R. Marolia Vs. Addl. CIT in ITA No.1201/Mum/2005 order dated 15.12.2005 6. Kolkata High Court in CIT Vs. Carbo Indl. Holdings Ltd. (200) 244 ITR 422 (Call) 7. Kolkata Bnech D in Dolarani Hemani Vs. ITO in ITA No.3801/Mu,/2011 order dated 27.04.2016 8. Mumbai Bench H in ITO Vs. Arvind Kumar Jain HUF in ITA No.4862/Mum/2014 order dated 18.09.2017 9. Punjab & Haryana High Court in Pr. CIT Vs. Prem Pal Gandhi order dated 18.01.2018 in ITA No. 95/2017 (O &M) 10. Hyderabad Bench A in Smt. Sarita Devi and Smt. Nitika Kumari Vs. ITO in ITA No.1228 and 1229 /Hyd./2016 order dated 05.....
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....(38) of the IT Act. I find the Assessing Officer rejected the claim of such exemption on the ground that assessee has entered into a colourable device for avoiding the tax and receipt of sale proceeds by way of cheque is nothing but unexplained cash credit u/s 68 of the IT Act. While doing so the Assessing Officer had referred to the statements from Nikhil Jain and Sh. Sanjay Vohra. I find the Ld. CIT(A) upheld the action of the Assessing Officer. It is the submission of the Ld. Counsel for the assessee that the transactions made by the assessee are not with the persons whose statements were recorded. Further such statements were never given or confronted to the assessee. The lower authorities have proceeded to tax the profit arising out of sale of such shares in the hands of the assessee on the ground that the assessee may be one of such beneficiaries. However, the shares according to the Ld. AR were sold through D-mat account maintained with Kotak Mahindra Bank, there were contract notes for purchase of the shares and the sale proceed were received by cheque. It is the submission of the Ld. Dr that the shares were purchased off maekt and there is no proper justification for huge ....