2025 (4) TMI 271

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....BY THE AO ON ACCOUNT OF ALLEGED BOGUS LONG TERM CAPITAL GAIN U/S 69 OF THE IT ACT, 1961 OF Rs. 73,17,110/-. 5. THAT THE APPELLANT HAS RIGHTLY CLAIMED THE GAIN FROM SALE OF SECURITUES AS LONG TERM CAPITAL GAIN UNDER THE RELEVANT SECTION 10(38) OF THE IT ACT, 1961. 6. THAT THE ALLEGED BOGUS SHARE TRANSACTION CANNOT BE TAXED U/S 69 AS THE APPELLANT HAS GIVEN THE DOCUMENTARY EVIDENCE OF SALE AND PURCHASE AT PREVAILING MARKET RATE ON STOCK EXCHANGE. 7- THAT THERE HAS BEEN NO EVIDENCE AS TO THE WHY THE GAIN FROM THE SALE OF SECURITIES BE TREATED AS UNEXPLAINED WS 69 OF THE ACT WHEN THE TRANSACTION HAS BEEN EXPLAINED BY COMPLETE DOCUMENTARY EVIDENCE AND ACCORDINGLY SHOWN U/S 10(38) OF THE ACT BEING GAIN FROM SALE OF SECURITIES TRANSACTION AND PRIMARY ONUS CASTED UPON THE APPELLANT HAS BEEN DISCHARGED. 8- THAT THE LD.CIT(A) AND LD.AO HAS FAILED TO ESTABLISH ANY NEXUS OR MATERIAL EVIDENCE TO ESTABLISH THE ALLEGED INVOLVEMENT OF APPEALLANT OTHER THAN BEING MERELY AN INVESTOR. 9- THAT THE TRANSACTION CANNOT BE DOUBTED AND BURDENED UPON THE APPELLANT WHEN THE PURCHASE AND SALE OF THE SHARES WHICH HAS BEEN TRADED ON EXCHANGE AT PREVAILING MARKET RATE....

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....d the present two appeals in Income Tax Appellate Tribunal (ITAT). Earlier, during assessment proceedings also; similar objection of the assessee was rejected vide letter dated 16.10.2018 of the Assessing Officer, relying on the aforesaid case of Rajkumar Arora (supra). 2.1 During the appellate proceedings in ITAT, two paper books containing the following particulars were filed from the assessee's side: - SI No Particulars 1 Copy of status of return for the A.Y. 2014-15 on the Income tax Portal 2 Copy of written submission filed before the Ld. Commissioner of Income Tax (Appeals)-IV, Kanpur dated 28.02.2020 3 Copy of Demat Account for the period of 01.04.2013 to 31.03.2014 4 Copy of ledger account of UPSE Securities in the books of Shiv Kumar Paliwal for the period of 01.04.2013 to 31.03.2014 5 Copy of Bank statement of Shiv Kumar Paliwal for the period of 01.07.2013 to 17.04.2014 6 Copy of UPSE Securities Statement 7 Copy of Contract Note 8 Copy of Demat Account for the period of 01.07.2012 to 31.07.2012 9 Copy of ledger account of UPSE Securities in the books of Shiv Kumar Paliwal for the period of 01.04.2011 to 31.03....

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....criminating materials were found in the course of search u/s 132 of the IT Act in respect of the various additions made by the Assessing Officer. Further it is also not in dispute that no assessment proceedings were pending in the cases of the assessee at the time of search conducted on 08/07/2016 in the case of the assessee, u/s 132 of the IT Act. Further, as no assessment proceedings were pending at the time of search & seizure operation u/s 132 of the Act on 08/07/2016, the case of the assessee falls in the category of unabated/completed assessments within the meaning of orders passed by Hon'ble Supreme Court in the cases of Principal Commissioner of Income-tax vs. Abhisar Buildwell (supra) and Dy. CIT vs. U. K. Paints (Overseas) Ltd. (supra) and within the meaning of order passed in the case of Kabul Chawla 380 ITR 573 (Delhi), which stands approved by Hon'ble Supreme Court by dint of orders of Hon'ble Supreme Court in the case of Principal Commissioner of Income-tax vs. Abhisar Buildwell (supra) and Dy. CIT vs. U. K. Paints (Overseas) Ltd. (supra). Further, in paragraph 14 of the aforesaid order of Hon'ble Supreme Court in the case of Principal Commissioner of ....

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....ction u/s 132A of the Act; although Hon'ble Supreme Court held that the completed/unabated assessments can be reopened by the Assessing Officer in exercise of powers u/s 147/148 of the IT Act subject to fulfillment of the conditions as envisaged/mentioned u/s 147/148 of the IT Act. Thus, although the powers of the Assessing Officer u/s 147/148 of the IT Act were saved by Hon'ble Supreme Court in the cases of Principal Commissioner of Income-tax vs. Abhisar Buildwell (supra) and Dy. CIT vs. U. K. Paints (Overseas) Ltd. (supra), subject to fulfillment of conditions envisaged u/s 147/148 of the IT Act; it has been categorically held that in respect of completed/unabated assessments, no additions can be made u/s 153A or under section 153C of the Act if incriminating material was not found / unearthed during the course of search u/s 132 of the IT Act in respect of the additions made. (C.2) The issue whether additions can be made in assessment orders passed u/s 153A or u/s 153C of IT Act in cases falling under unabated/completed assessments, when no incriminating material was found at the time of search u/s 132 of the IT Act, was a disputed issue in the past. While a vie....