TaxTMI 
TaxTMI 
2019 (8) TMI 700
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.... 2014-15 and 2015-16 against the respective Commissioner of Income-tax (Appeals) separate order(s) affirming the Assessing Officer(s) identical action treating varying sums of Long Term Capital Gains (LTCG) / Long/Short Term Capital Loss (LTCL); as the case may be as involving unexplained cash credits u/s 68, involving proceedings u/s 143(3) of the Income Tax Act, 1961; in short 'the Act'. 2. I have heard these appeal(s) together of the fact that the sole identical issue raised in the instant entire batch is that of genuineness of assessees' LTCG/LTCL, as the case may be, derived from sale of shares held in various scrips. It is in this identical backdrop that I am treating ITA No.2662/Kol/2018 in case of Mrs.Manju Agarwal vs. ITO Wd-61(4), Kolkata for assessment year 2014-15 as the "lead" case. 3. Both the learned representative(s) take me to CIT(A)'s detailed discussion whilst treating the impugned STCL pre-arranged bogus loss in the instant "lead" case vide the following lower appellate discussion:- "3. Grounds No. 1 to 5 of the appeal are directed against the action of the A.O. to disallow appellant's claim of Long Term Capital Gain/ Short Term Capital Gain u....
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....an of 18 months is nothing but booking of bogus LTCG. Accordingly, the entire amount of LTCG of Rs. 36,48,564/- was added back as bogus LTCG to the income of the appellant. During the appellate proceedings, the A/R of the appellant appeared on 05.06.2018 and filed a written submission along with some supporting documents. 3.1 I have carefully considered the assessment order wherein the addition of Rs. 36,48,564/- has been made by the A.O. on account of bogus Long Term Capital Gain. I find that the A.O. at the time of completion of the assessment proceedings has framed the assessment after analyzing various information received from the Investigation Wing. Some of the observations which come to light upon examination of the records of the appellant are as below:- a. There is a common pattern in the trading of such scripts and the pattern is that they represent a bell shape in their trading. (Page no.8 of the assessment order) b. From Balance Sheet of the listed penny stocks it is found that they have no actual financial credentials to support their share movement pattern. Almost all the companies have no fixed assets, no turnover, no profitability....
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....ce rigging. It is thus established that the appellant alongwith entry operators controlling Kailash Auto and the broker M/s Guiness Securities Ltd formed a nexus for providing bogus LTCG. 3.3 I have also perused all the submissions made by the appellant during the course of appeal proceedings alongwith the supporting evidences. The main contention of the appellant that all the supporting evidences in the form of bank statement, contract notes, delivery instruction proves the genuineness of the transactions. In my view, all these documents as referred to by the appellant are mere documents and not any evidence. The whole transactions are not natural at all. In my opinion, payment made through banking channel does not constitute the transactions to be genuine transaction since the banking documents are merely self serving recitals. None of the material produced by the appellant is enough to justify the huge gains as claimed under the head LTCG. 3.4 In a penny stock which has no business activity or any plan or initiative or any prospect for growth, investors normally sell off such stock whenever price has appreciated to some extent and there is total uncertainty to ....
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....er forms. The transaction of purchase of shares could not be crossed verified. The shares of the company was declared as 'Penny Stock" by SEBI and the broker Sanju Kabra, through whom the shares were sold by the assessee was indicted for manipulating the prices of penny stock shares. The tax authorities have rightly applied the test of human probabilities to examine the claim of purchase and sale of shares made by the assessee. the CIT(A) was justified in confirming the order of the AO by applying the test of human probabilities. ITAT Bangalore, "SMC-C" Bench. ITA No. 1723/Bang/2018, AY 2015-16, Smt. M.K. Rajeshwari Vs. Income Tax Office, Ward-3, Raichur, date 12.10.2018, in para no. 8 & 9 of the order as under:- "The AO has also examined the SEBI's findings about the accommodation entry providers obtained on the basis of various investigations and has brought out sufficient material on record to demonstrate that the transactions are not genuine and he accordingly concluded that the on term capital gain booked by the assessee in the books were pre-arranged method to evade taxes and laundered money. The findings and observations of the AO were not controve....
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....ng of the scrip prices in issue and involving accommodation entry in collusion with the concerned entry operators. Hon'ble apex court's decisions in Sumati Dayal vs. CIT (1995) 80 Taxmann.89/214 ITR 801 (SC) and CIT vs. Durga Prasad More (1971) 82 ITR 540 (SC) are quoted before me during the course of hearing at the Revenue's behest. It strongly argues that the department has disallowed/added the impugned STCL based on circumstantial evidence unearthed after a series of search actions / investigations undertaken by the DDIT(Inv). I find no merit in Revenue's instant arguments. The fact remains that the assessee has duly placed on record the relevant contract notes, share certificate(s), detailed corroborative documentary evidence indicating purchase / sale of shares through registered brokers by banking channel, demat statements etc., The Revenue's only case as per its pleadings and both the lower authorities unanimously conclusion that there is very strong circumstantial evidence against the assessee suggesting bogus STCL accommodation entries. I find that there is not even a single case which could pin-point any making against these assessees which could be taken as a reve....
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....e relied on the order of the Chennai 'A' Bench of the Tribunal in the case of M/s. Pankaj Agarwal & Sons (HUF) vs. ITO in ITA No. 1413 to 1420/CHNY/2018; order dt. 06/12/2018, for the proposition that such capital gains have to be brought to tax. He also relied on the judgment of the Hon'ble Bombay High Court in the case of Sanjay Bimalchand Jain vs. Principal Commissioner of Income-tax-1, Nagpur; [2018] 89 taxmann.com 196 (Bombay) and the decision of the Smt. M.K. Rajeshwari vs. ITO; ITA No.1723/Bng/2018; Assessment Year 2015-16, order dt. 12/10/2018. 5. After hearing both sides, I find that in a number of cases this bench of the Tribunal and Jurisdictional Calcutta High Court has consistently held that, decision in all such cases should be based on evidence and not on generalisation, human probabilities, suspicion, conjectures and surmises. In all cases additions were deleted. Some of the cases were, detailed finding have been given on this issue, are listed below:- Sl.No. ITA No.s Name of the Assessee Date of order/judgment 1 ITA No.714 to 718/Kol/2011 ITAT, Kolkata DICT vs. Sunita Khemka 28.10.2015 2 214 ITR 244 Calcutta High Court CIT ....