AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 434
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....ntry in the form of capital loss in the shares of luminaire tech." 2.1 The brief facts of the case are that the assessee is an individual and earns income from profession, income from house property and certain capital gain etc. The assessee had filed his return of income 16.01.2015 by declaring total income at Rs. 2,35,160/-. The case of the assessee was selected for scrutiny through CASS and notice u/s 143(2) dated 18.09.2015 was issued. Further notices u/s 142(1)along with query letter were issued on 24-05-2016 and duly served upon the assessee fixing the date for hearing on 02-06-2016. In compliance thereof, the assessee attended hearing from time to time and furnished the requisite details as desired by the AO. It is noted from the assessment order that the AO on the basis of the information received from Investigation Wing, Calcutta/Mumbai formed an opinion that the short term capital loss declared by the assessee on shares of Luminaire Technologies for Rs. 3,41,083/- was bogus and hence a show cause notice was issued to the assessee. An explanation was furnished by the assessee but the AO was not convinced and he disallowed such declared short term capital loss and he has a....
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....ny satisfactory explanation about the source of the same. This sum of Rs. 6,821/- is treated as unexplained expenditure u/s 69C of the Income-tax Act, 1961 and added to the total income of the assessee for the year under consideration. Looking to the nature of issue involved and the evidences with the undersigned, I am satisfied that the assessee has concealed particulars of income and therefore, penalty proceedings u/s 271(1)(c) of the income-tax Act, 1961 are initiated separately on this issue.[Addition of Rs. 6,821/-].'' 2.2 In first appeal, the ld.CIT(A) has confirmed the action of the AO as to both the grounds by observing as under:- ''5.2 Ground 2 (now as Ground No.1 before ITAT) ''5.2.1 It is seen that the appellant has relied upon its documentation maintained with respected to the disputed transactions i.e, transactions through cheque, contract notes etc. and has relied upon certain decisions as quoted above. As has been discussed in paragraphs above, the AO has not merely relied upon the statements but discussed the facts of the instant case as well as the surrounding circumstances in great detail in the assessment order. Further in view of detailed discussion in the ....
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....y the Hon'ble Supreme Court in (2019) 112 taxman.com 330 is applicable to the facts of the instant case. The facts of the instant case are on similar footing. 5.2.4 Based on the above discussion, Ground No 2 raised by the appellant is dismissed.'' 5.3 Ground 3 (now as Ground No.2 before ITAT) 5.3.1 It is seen that in this ground the appellant has disputed the addition of Rs 6,621 being alleged commission spent for arranging the accommodation entry in the form of STCL. It is seen that the payment of commission is a natural corollary of the finding of obtaining accommodation entry through the stated modus operandi, which has been discussed. In the earlier grounds of appeal, the stand of the AO in holding that the assessee has obtained accommodation entry has already been found correct. As discussed earlier, the decision of Hon'ble Calcutta High Court in the case Swati Bajaj and others (IA no. GA/2/2022 dated 14/6/2022) is relevant here wherein the Hon'ble Court has taken together a group of cases and have noted the prevalence of entry operators and brokers providing accommodation entries against commission has been highlighted and action taken by the Income Tax depa....
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....e assumed with the appellant. 6. The appellant had purchased shares through SEBI registered broker namely Hem Securities Ltd. and also sold the same through it within a span of less than a month. He had purchased shares through contract note dated 17.02.2014 and 18.02.2014 (APB 7- 8) and sold all the shares through contract note dated 13.03.2014 (APB 9). 7. There is nothing to prove that any unaccounted cash changed the hands. 8. The shares purchased by the appellant were credited in his D Mat account and same were transferred there from (APB 10-11). 9. All the transactions for purchase and sale of shares through above named broker were settled only through banking channel. 10. No opportunity was provided to the appellant to verify whether his name appears in the statements of the persons relied upon by the ld. AO as well as CIT (A). Under such circumstances the action of the ld. AO as well as ld. CIT (A) is required to be quashed. Reliance is placed on following judicial pronouncements of this Hon`ble Bench :- 1. Nilesh Agarwal HUF v/s ITO (ITA Nos. 222-223/JP/2020 vide order dated 09.02.2021) 2. Meghraj Singh Shekhawat v/s DCIT (ITA No. 444/JP/2017 vide order da....
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....ved in Pool Account of the Broker and were transferred in the D Mat account of the assessee on 11-03-2014 from Pool Account. This fact stands proved from the narration mentioned against entry dated 11-03-2014 in account of Luminaire Technologies Ltd. in the D Mat account of the assessee (APB 11) as under:- ''TXN WITHIN SAME CDSL DP (BO TO BO) trade Id 286917 Tm id 566296 Counter.'' The above narration shows that shares of Luminaire Technologies Ltd. were received in D Mat account of the assessee from some other account maintained with same CDSL DP. Hence, it is proved that the shares of Luminaire Technologies Ltd. were routed through D Mat Account of the assessee only 2.5 We have heard both the parties and perused the materials available on record including the case laws cited by the assessee with written submission. It is verified from the records of the case that as per ledger account of the assessee in the books of the broker namely Hem Securities Ltd. (APB-13) following cheques were given by the assessee against purchase of shares of Luminnaire Technologies Ltd. :- 1. 19-02-2014 Cheque No. 14 of HDFC Bank Rs. 2,00,000/- 2. 20-02-2014 Cheque No. 16 of HDFC Bank Rs. 73,38....