2025 (9) TMI 1482

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....hout the Assessing Officer forming her own independent opinion, Change of opinion and also without following and complying with other mandatory provisions of the Act. 2. Whether on the facts and circumstances of the case of the appellant and in law, the Ld. Commissioner of Income Tax Appeals A.O. has erred in confirming the addition of Rs. 8,01,06,478/- made by the AO, u/s 68 of the Act against genuine Long Term Capital Gain claimed exempt u/s 10(38) of the Act by the appellants, without appreciating the fact that the appellant having proved genuineness of the transaction, established identity of the concerned party (creditor) and also creditworthiness thereof and that not only the initial burden but whole of the burden as envisaged u/s 68 of the Act having been fully discharged and that there is absolutely no justification for making impugned addition under the provision of Section 68 of the Act." 3. Representatives of both the sides were heard at length. Case records carefully perused and the relevant documentary evidences brought on record duly considered in the light of Rule 18(6) of the ITAT Rules. 4. Briefly stated the facts of the case are that the assessee fi....

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....s not in possession of this office earlier, and assessee being one of the beneficiary of scrip of M/s Banas Finance Limited, hence it is not wrong to conclude that, in the case of assessee there is failure on part of assessee to disclose truly and fully all material facts necessary for assessment for AY 2012-13 resulting in escapement of income of Rs. 8,01,06,478/-. 7. In this case, return of income was filed for AY 2012-13, however no assessment under section 143(3) has been done. Accordingly, in order to initiate the proceeding under section 147 of the Act, the requirement is reason to believe that income has escaped assessment by reason of failure on the part of assessee in making true and full disclosure of total income for assessment for AY 2012-13, which is recorded above. 8. In view of above, I find that this is a fit case for proceeding under section 147 of the Act. Since, period of 4 years has elapsed from the end of relevant assessment year, hence necessary sanction to issue notice under section 148 of the Act has been obtained separately from Pr. CIT-17, Mumbai as per the provisions of section 151 of the Act." 6. The entire assessment revolves around....

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....rm capital loss is disallowed to the extent of loss on shares of BANAS FINANCE LIMITED to the tune of Rs. 8,01,06,478/- Penalty provisions u/s.271(1)(c) r.w.s. 274 of the IT Act are hereby initiated separately for furnishing inaccurate particulars of income." 8. A perusal of the above shows that the AO has hurriedly made the addition without realizing that the assessee has not booked any loss in the garb of Short Term Capital Loss as is evident from the statement of total income exhibited elsewhere. The AO has placed heavy reliance on the order of Adjudicating Officer, SEBI by which BFL was penalized for SEBI violation. What has lost the sight of the AO is the order of the Securities Appellate Tribunal dated 26.07.2019 by which the Tribunal held that BFL had shown that the required disclosure was made. 9. Coming back to the merits of the case, neither the assessee nor her broker is named in the alleged price regime of BFL. On the contrary, the documents mentioned hereinabove go on show that the assessee had done transactions through stock exchange and the consideration received is through banking channel, therefore, on such evidences no adverse inference can be drawn. 10. ....

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.... Tribunal. 4. Mr. Walve placed reliance on a judgment of the Apex Court in Principal Commissioner of Income-tax (Central)-1 vs. NRA Iron & Steel (P.) Ltd.' but that does not help the revenue in as much as the facts in that case were entirely different. 5. In our view, the Tribunal has not committed any perversity or applied incorrect principles to the given facts and when the facts and circumstances are properly analysed and correct test is applied to decide the issue at hand, then, we do not think that question as pressed raises any substantial question of law." 11. Considering the facts of the case in totality, in the light of the judicial decisions discussed hereinabove, we do not find any merit in the additions made by the AO. The same are directed to be deleted. 12. Before parting, it would be apt to refer to the decision of the Co-ordinate Bench in the case of Sonal Snehal Shah, in ITA No.1653/Mum/2024 wherein the Co-ordinate Bench was considering the same scrip BFL. The relevant findings read as under: "Even otherwise on the merits of the case, the learned assessing officer was confronted with all the evidences available with the assessee....