2022 (12) TMI 843

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..... None appeared on behalf of the assessee. In the light of decision of the Hon'ble jurisdictional High Court at Calcutta in Swati Bajaj & Others (2022) 139 taxmann.com 352(Cal.), we deem it proper to adjudicate the matter ex parte qua the assessee with the assistance of Ld. Sr. DR. 3. Assessee has raised as many as nine grounds, all of which are in respect of treatment by the Ld. AO of the Long Term Capital Gain (LTCG) of Rs.40,36,900/- on the sale of 6000 shares of GCM Securities Ltd. (in short "GCM") by holding it as penny stock and also in respect of addition of Rs.20,184/- being 0.5% as alleged cost of arrangement of accommodation entry by treating it as unexplained expenditure u/s. 69C of the Act on the LTCG referred above. The said g....

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.... in appeal before the Ld. CIT(A) who confirmed the addition. Aggrieved, assessee is now in appeal before this Tribunal. 5. We have heard Ld. Sr. DR and have carefully gone through the facts and records and the decision cited above. We find that recently on 14.06.2022, the Hon'ble jurisdictional High Court of Calcutta passed a judgment in the case of Swati Bajaj and others [2022] 139 taxmann.com 352 (Cal) dealing with set of cases with similar fact patterns as narrated above for the present appeals under consideration before us. Hon'ble jurisdictional High Court by taking the report of the Directorate of Investigation of the Department as the basis, gave its observations and findings, which are summarized hereunder. 6. There are two catego....

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....s of violation of principles of natural justice the assessees have not made out any case. [para 65] c) The test to be applied is the test of preponderance of probabilities to ascertain as to whether there has been violation of the provisions of the Income-tax Act. In such a circumstance, the conclusion has to be gathered from various circumstances like the volume from trade, period of persistence in trading in the particular scrips, particulars of buy and sell orders and the volume thereof and proximity of time between the two which are relevant factors. Therefore, the methodology adopted by the revenue cannot be faulted. [para 69] d) Test of preponderance of probabilities have to be applied and while doing so, the court cannot loose si....

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....as not been proved or established by any of the assessee. [para 99] j) The tribunal being the last fact finding authority was required to go deeper into the issue as the matter have manifested large scale scam. Thus, the orders of the tribunal are not only perfunctory but perverse as well. The exercise that was required to be done by the tribunal is to consider the totality of the circumstances because the transactions are shown to be very complex, the meeting of minds of the "players" can never be established by direct evidence and therefore the surrounding circumstances was required to be taken note of by the tribunal which exercise has not been done. [para 99] k) In such factual scenario, the Assessing Officers as well as the Commiss....