AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 1379
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....apital gain claimed as exempted u/s 10(38) of the Act of Rs. 46,96,881/- made by the Assessing Officer arising out of sale of shares of Sunrise Asian Ltd., a penny stock and without appreciating the findings of the Assessing Officer that the price movement of the company were not supported by financial fundamentals of the company? ii) Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was justified in allowing the appeal of the Assessee by holding that the investment in shares was genuine, simply placing reliance upon the decision of Hon'ble High Court in the case of CIT vs Himani M Vakil [2014] 41 taxmann.com 425(Guj.) and overlooking the circumstantial evidences and preponderance of the probability in the case? iii) Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was justified in ignoring the fact that, one of the entry operators involved in this case Shri Anil Khemka has admitted that the scrip of Sunrise Asian Ltd has been used for providing accommodation entry? iv) Whether on the facts and circumstances of the case and in law the order of the Hon'ble ITAT suffe....
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.... as under: "[10] The Tribunal, thereafter, has also considered the aspect of the receipt of sale consideration of the assessee as reflected in the bank statement and held as under: "25. We note that assessee has received sale proceeds by electronic mode of payment system, that is, RTGS and NEFT, UTIB, directly in her SBI account, as follows: Date Mode Amount (Rs) Paper book 25.02.2014 RTGS 14,50,756.68 -49 05.03.2014 RTGS 32,27,539.63 -49 11.03.2014 NEFT 1,95,711.34 -49 Total 48,74,007.65 With respect to BSE date produced by the assessing officer on page 2 and 3 of assessment order, it was submitted that the assessee has furnished copy of purchase bill. The payment of purchase of Rs. 10,000 shares of Conart Traders Ltd., was made by cheque that can be seen from her SBI pass book. It is also appearing in her balance sheet as on 31.03.2012 and 31.03.2013. Assessment for assessment year (AY) 2013-14 was made by Assessing Officer u/s. 143(3) of the Act. The purchase of shares of Conart Traders Ltd, is accepted by the Assessing Officer. The said company was amalgamated with Sun Rise Asia....
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....hange. The findings as well as conclusion of Assessing Officer were based on mere suspicion, and surmises as against settled proposition of law that suspicion howsoever strong could not partake the character of legal evidence. The entire case of Assessing Officer was based on mere presumption that the assessee ploughed back her own unaccounted money in the form of Bogus LTCG. The presumption needs to be corroborated by some evidence to establish the same. It is trite law that presumption, however, strong, cannot be a substitute, nor can it take place of evidence For the said proposition, reliance is placed on Hon'ble Supreme Court decision, in the case of Omar Salas Mohamed Sait reported in (1989) 37 ITR 151 (SC) where in it was held that no addition can be made in the basis of surmise, suspicion and conjectures. 27. We note that Assessing Officer has relied on the report of Investigation Wing Kolkata dated 24.04.2015. At the outset. these could not be relied on for the simple reason that the assessee has never takes any accommodation entry from any broker, she has supplied complete details of 'SAL' as well as the SEBI registered broker, Nirmal Bang Sec. Pvt. Ld., thro....
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.... Calcutta High Court in the case of Swati Bajaj and others (supra) should not be applicable to the assessee as it is outside territorial jurisdiction of Gujarat. However, the Judgment of Hon'ble Jurisdictional High Court of Gujarat in the case of Jagat Pravinbhai Sarabhai and Nishant Kantilal Patel (supra) should be applicable in the assessee's case as there are the judgment of Jurisdictional High Court. Besides, the Jurisdictional Co-ordinate Bench of ITAT Ahmedabad in the save of M/s. Ice Worth Reality LLP. Vide ITA Nos. 565 & 566/Ahd/2020, for Assessment Year 2012-13 & 2015-16, order dates 13.03.2023 (supra), deleted the addition made by the Assessing Officer in respect of Sunrise Asian Ltd. ("SAL") shares, which is impugned shared before us. We note that Assessing Officer has not been able to point out any evidence whatsoever to alleged that money changed hands between the assessee and the broker or any other person, or father that some person provided the entry to convert unaccounted money for getting benefit of LTCG, as alleged. 34. We note that addition under section 18 of the Act made merely on the basis of suspicion presumptions and probability of preponde....
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....sessing Officer was justified in making addition of unaccounted income of the assessee on the ground of accommodation entries availed by the assessee. [15] It was further submitted that the CIT(A), after considering the documents available on record, has upheld the view taken by the Assessing Officer. It was submitted that the Tribunal, after considering the submissions made by the assessee and the Departmental Representative, allowed the appeal. It was submitted that the Tribunal, therefore, contrary to the facts and evidence on record, has allowed the appeal without considering the findings of the Assessing Officer and the CIT(A) in its true perspective. [16] Considering the contentions raised on behalf of the Revenue, the Tribunal has arrived at a finding of fact that shares of Sunrise Asian Ltd. sold by the assessee cannot be doubted as bogus and exemption under Section 10(38) of the Act was rightly availed by the assessee. The Tribunal has also concluded that the presumption drawn by the Assessing Officer was not corroborated by any evidence to establish the alleged non-genuine transaction by the assessee. It was, therefore, rightly held by the Tribunal that ....