TaxTMI 
TaxTMI 
TaxTMI 
2024 (7) TMI 1721
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....to 21 were not pressed by the assessee, as these grounds were contained arguments of assessee. The ld DR for the Revenue also agreed that these grounds are argumentative in nature and assessee need not to press, therefore we dismiss ground nos.1, 2, 5, 7 and ground nos. 9 to 21, as not pressed. 3. Although, this appeal filed by the Assessee, for Assessment Year 2015-16, contains multiple ground of appeals. However, at the time of hearing we have carefully perused all the grounds raised by the Assessee. We find that most of the grounds raised by the Assessee, are either academic in nature or contentious in nature. However, to meet the end of justice, we confine ourselves to the core of the controversy and main grievances of the Assessee. We note that assessee wants to press ground nos. 3, 4, 6 and 8, the sum and substance of these grounds are that ld. CIT(A), sustained the addition based on suspicion, and the addition so made is not backed by single evidence against the assessee, the addition was made by the assessing officer, based on the information reported on AIMS module of the ITBA, as there is absence of any investigation involving the name of assessee or any statement reco....
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....e Income Tax Act, 1961 has been issued on 31/03/2021 through ITBA portal and duly served to the assessee on 31/03/2021.The assessee has filed his return of income in response to the notice u/s 148 on 15/04/2021. Notice u/s 143(2) has been issued on 03/09/2021, thereafter notices u/s 142(1), on various dates were issued through ITBA portal and served to the assessee on available Email ID and his e-filing portal account on various dates. In response to the notices u/s 142(1) of the Act, the assessee has furnished details. In response to query related to his claim of exempt Long Term Capital gain arised out of sale of shares of PSITINFRA (Scrip Code: 505502), the assessee's reply was as follows: "As regard the long term capital gain claimed exempt u/s 10(38) of the Act in ITR-I herewith furnish copy of Bank Statement wherein amount at Rs. 18,00,000/- debited on 03/08/2013, for the payment of Shares purchased to Bhushi Trading and Cheques deposited periodically from 21-02-2015 to 27- 03-2015 towards share sales consideration which were received from Prudent Broker. In addition to this I herewith furnish complete shares transaction history wherein all the record fr....
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....guilty threatens the innocent" is squarely applicable to the issue at hand. The latin maxim "nuuscommodumcaperepotest de injuria sua propria", which is applicable to the issue at hand, means "no one can obtain an advantage by his own wrong". The ld. CIT(A) relied on many judicial pronouncements, and after taking note of the detailed findings made by the assessing officer (AO), the impugned addition made u/s 68 of the Act was confirmed, by ld. CIT(A). 8. Aggrieved by the order of Ld. CIT(A), the assessee is in further appeal before us. 9. Shri Sagar Shah, ld. Counsel for the assessee, vehemently argued that assessee in the assessment year(A.Y.) 2015-16 claimed exemption u/s 10(38) of the Act to the tune of Rs. 3,12,35,919/- for long term gain on sale of shares of PS IT Infrastructure & Services Limited (Erstwhile known as Parag Shilpa Investment Limited). The claim of the assessee is duly supported and based on the third- party evidences as submitted in the assessment proceeding. The assessee has purchased the shares of PS IT infrastructure & Services Limited, during the year 2013 and the same was sold by the assessee, during the year 2015 and submitted all the details relatin....
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....e present case, passed the order merely based on the assumption and the information he collected through the AIMS module and too without testing it that information with that of the evidences placed on record. The assessing officer has only stated the modus operandi, in the assessment order, based on the pre-assumptions of his mind, wherein the live link between the modus operandi and the facts of the present case is missing in the assessment order. There is no involvement of the assessee in any such wrong doing, as alleged by the assessing officer. To support his arguments, ld Counsel for the assessee, relied on the following judgements: (i) Mamta Rajiv kumar Agarwal, Tax Appeal No. 408 of 2023, dated 11.09.2023 (Guj HC) (ii) Shri Ambalal Chimmanlal Patel, Tax Appeal No. 260 of 2024, dated 15.04.2024 (Guj HC). (iii) Champalal Gopiram Agarwal, 155 taxmann.com 66 (Guj HC). (iv) Abhishek Doshi, ITA No. 3122/Mum/2022, dated 31.05.2023. 11. On the other hand, Learned Commissioner of Income-tax - Departmental Representative (Ld. CIT-DR) for the Revenue, argued that assessee has obtained the long- term capital gain (LTCG), which is fictitious, there....
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.... of Dematerialization request Form along with Dmat request set up acknowledgement (vide Pb.11 to 12), (vi) Notice dated 08.08.2014 issued by BSE about change in the name of the company from Parag Shilpa Investments Ltd to PS IT Infrastructure & Services Limited (vide Pb.13), (vii) Notice dated 25.08.2014, issued by BSE about sub-division of the shares from one share into 10 shares (vide Pb.14 to 15), (viii) Bank statement reflecting receipts from sale of shares (vide Pb.16 to 17), (ix) Global report (vide Pb.18), (x) Statement of transactions from period 01.01.2015 to 31.03.2015 (vide Pb.19). We have examined the above documents and evidences relating to facts, and noted that by submitting the above Palathra documents and evidences, the assessee has proved the genuineness of the transaction, therefore, assessing officer ought not to have made the addition in the hands of the assessee. The assessing officer, in assessment order, nowhere stated that above documents and evidences, are bogus and not genuine. We note that the whole exercise is to be based on facts and it is the duty of the assessing officer to marshal all the facts and come to a logical conclusion about the documents su....
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....d 1. 21.02.2015 21000 18,01,968 24.07.2013 84,000 17,17,968 19 Page no. 16 to 16 2 24.02.2015 27000 23,16,978 24.07.2013 1,08,000 22,08,978 19 Page no. 16 to 16 3. 04.03.2015 15000 13,00,563 24.07.2013 60,000 12,40,563 19 Page no. 16 to 16 4. 05.03.2015 34000 29,83,065 24.07.2013 1,36,000 28,47,065 19 Page no. 16 to 16 5. 10.03.2015 27000 28,73,438 24.07.2013 1,28,000 27,45,438 20 Page no. 16 to 16 6. 11.03.2015 32000 24,13,699 24.07.2013 1,08,000 23,05,699 20 Page no. 17 to 17 7. 13.03.2015 23000 20,07,978 24.07.2013 92,000 19,15,978 20 Page no. 17 to 17 8. 14.03.2015 20000 17,22,454 24.07.2013 80,000 16,42,454 20 Page no. 17 to 17 9. 17.03.2015 11000 9,34,575 24.07.2013 44,000 8,90,575 20 Page no. 17 to 17 10 18.03.2015 24000 19,69,708 24.07.2013 96,000 18,73,708 20 Page no. 17 to 17 11. 24.03.2015 65000 50,35,144 24.07.2013 2,60,000 47,75,144 20 Page no. 17 to /? 12. 26.03.2015 ....
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....e than 12 months- The request form for dematerialization of shares has been submitted vide request form dated 21.01.2014, which is evident from the copy of Acknowledgement and the average period of holding of shares is 20 months (purchased on 24.07.2013 & initial sale on 21.02.2015) out of which the shares are held for almost 13 months in demat account and (iii) Shares were sold through recognized stock exchange after payment of Security Transaction Tax - The Security Transaction Tax has been paid by assessee which is evident from the copy of global report. Thus, the above-mentioned facts have been duly complied with by the assessee and thus, the assessee is entitled to claim exemption u/s 10(38) of the Act. 18. We note that on the identical facts, the Hon'ble, jurisdictional Gujarat High Court in the case of PCTT v. Champala Gopiram Agarwal, R/TAX APPEAL No. 366 of 2023, 25.07.2023 held as follows: "The High Court held that the Tribunal found that assessee had discharged the initial burden cast upon it under provisions of section 68. Shares of companies were purchased online, payments were made through banking channels, and shares were dematerialized. Additionally,....
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....me persons were found indulged in providing accommodation entry. Assessing officer in the entire assessment order had not referred to single documentary evidence which could be said to be incriminating material against the assessee to show that assessee had availed of accommodation entry of bogus long-term capital gain. 20. The Hon'ble, jurisdictional Gujarat High Court in the case of Mamta Rajivkumar Agarwal, Tax Appeal No.408 of 2023, dated 11.09.2023 held that there was no evidence available on record suggesting that the assessee or his broker was involved in rigging up of the price of the script of M/s Shree Nath Commercial & Finance Ltd. The assessee had acted in good faith. The Tribunal, therefore, correctly held that the Assessing Officer had acted only on assumption which was misconceived. The Hon'ble, jurisdictional Gujarat High Court in the recent case of Shri Ambalal Chimanlal Patel, vide Tax Appeal No.260 of 2024, dated 15.04.2024 held that both the appellate authorities, that is, "CIT(A) and ITAT" have taken into consideration the notice of contract memo placed on record by the respondent assessee with regard to the purchase and sale of shares and it is also....
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.... all Courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is, of course, the ratio of the decision and not every expression found therein. (b) The decisions of the High Court are binding on the subordinate Courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extent beyond its territorial jurisdiction. (c) The position in regard to binding nature of the decisions of a High Court on different Benches of the same Court, may be summed up as follows : (i) A Single Judge of a High Court is bound by the decision of another Single Judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision. Judicial comity demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked. If he does not find himself in agreement with the same, the proper procedure is to refer the binding decision and direct the papers to be placed before the Chief Justice to enable him to constitute a ....
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....a) should not be applicable to the assessee as it is outside the territorial jurisdiction of Gujarat. However, the Judgment of Hon'ble Jurisdictional High Court of Gujarat referred in our order, (supra) should be applicable to the assessee's case, as these are the judgments of Jurisdictional High Court. As we have noted that Hon'ble Gujarat High Court in the recent cases viz: (i) CIT vs. Mamta Rajivkumar Agarwal, TA No. 408 of 2023, dated 11.09.2023, (ii) PCIT vs Ambalal Chimmanlal Patel, TA No. 260 of 2024, dated 15.04.2024 and (iii) PCIT vs Champalal Gopiram Agarwal (supra) wherein the Hon'ble Gujarat High Court has deleted the addition on account of penny stock holding that assessee has submitted required documents and evidences, therefore the Tribunal situated in Gujarat State has to follow the decision of the Hon'ble Gujarat High Court as mandated by judicial discipline. 23. We find that assessing officer failed to bring on the record any documentary evidence describing involvement of the assessee in any such wrong doings, or all the alleged scam, as referred by the assessing officer in the assessment order. Not a single statement of a person refers the ....